T&C for Freelancers at WorkGenius GmbH
Status: 02. June 2020
1.1. WorkGenius GmbH (hereinafter "WorkGenius") operates the website www.workgenius.com (hereinafter "website") and offers customers (hereinafter "customers") the opportunity to commission WorkGenius to carry out specific tasks (hereinafter "projects").
1.2. WorkGenius will not process the projects itself, but rather engage freelancers registered with WorkGenius (hereinafter "freelancers") to do so. It will then make the result uploaded by the freelancers available on the website (hereinafter "result"), which can be downloaded from it by the client.
1.3. These Terms and Conditions for freelancers (hereinafter referred to as "T&C") form the basis for all legal relationships between WorkGenius and the freelancers.
1.4. Freelancers are natural persons, not consumers.
1.5. Conflicting or differing terms and conditions of the freelancer’s business shall not apply unless WorkGenius expressly agrees to their application in writing. WorkGenius' terms and conditions shall also apply if it delivers without reservation in the knowledge that the freelancer's terms and conditions conflict with or deviate from these.
2.1. To view and edit projects on the website, the freelancer must register on the website using the form provided for freelance registration.
2.2. For the purpose of registration, the freelancer must take an online placement test.
2.3. The freelancer assures that all data required in the registration form is correct, complete, and truthful. He/she also commits to keeping the data up to date. For this purpose, the freelancer can view his/her personal data on the website at any time.
2.4. Upon registration, the freelancer receives a username and a personal password.
2.5. Upon registration, WorkGenius will set up a user profile and user account for the freelancer.
2.6. Neither registration nor account is transferable.
2.7. Each freelancer may only register once with WorkGenius.
2.8. Upon registering, the freelancer must state whether he/she is to be considered an entrepreneur for VAT purposes. In this case, the freelancer must state his/her VAT registration number. The freelancer must inform WorkGenius immediately of any change in his/her VAT.
3. Quality classification
3.1. WorkGenius assigns each a quality classification by WorkGenius: "5 stars" being the highest rating and "1 star" the lowest.
3.2. When registering, freelancers are first assigned the lowest quality classification of "1 star". However, particularly on the basis of the results of the test in accordance with section 2.2, WorkGenius is entitled to upgrade the freelancer's rating at its own discretion.
3.3. The further assignment of quality classifications is based on an evaluation that the client gives after receiving a freelancer’s project result.
3.4. Freelancers can either scale up their quality classification levels or down. Detailed information on this can be found on the website.
3.5. Should a freelancer not complete a project within the working time set by the client (assuming the freelancer has not previously contacted the client about the project), he/she will automatically be downgraded to the quality classification of "1 star" if he/she has already achieved a higher quality classification.
3.6. When placing a project, the client can specify the minimum quality classification the freelancer must have reached in order to be allowed to work on it.
4. Placing orders and processing projects
4.1. Every freelancer can view all projects posted on the website.
4.2. WorkGenius offers every freelancer the projects for which his/her quality classification meets the requirements. The order to effectively work on the project is given to the first freelancer on the website who accepts WorkGenius' offer to take it.
4.3. After the assignment, the freelancer receives all information and specifications provided by the client to work on the project according to the client's specifications.
4.4. The freelancer submits the result to WorkGenius at the latest by the date stated in the project description. The submission is accomplished by uploading it to the website.
4.5. If the freelancer notices that he/she is unable to complete the project during its execution, he/she is obliged to contact the client directly via the comment box on the website and clarify any ambiguities in the project description. Alternatively, an extension of the working time can be coordinated. If the freelancer does not fulfill this obligation, does not complete the project, or not on time, he/she is obliged to pay WorkGenius a contractual penalty per day of delay of five percent of the net remuneration awarded by the client, up to a maximum of 20% of the net remuneration. WorkGenius reserves the right to claim further damages.
4.6. The processing of projects, their execution, the result, or the provision of the latter cannot violate the law or third parties' rights. If WorkGenius nevertheless finds that the results violate the law or the rights of third parties, the result will first be removed from the website, and the freelancer will be given the opportunity to remedy the violation within one week. If this is not successful, the result will be permanently deleted.
4.7. The freelancer is aware that the loss of data on the WorkGenius server cannot be completely excluded. Therefore, he/she undertakes to personally make and keep a backup copy of the results uploaded to the website. Notwithstanding this, WorkGenius regularly carries out data backups and, in this way, endeavors to keep any data loss to a minimum.
5.1. All information that the freelancer receives when being assigned a project and working on it, unless this information (i) was publicly known when the order was placed, (ii) later became publicly known through no fault of the freelancer, (iii) was lawfully known to the freelancer before the order was placed or (iv) was lawfully made known to the freelancer by third parties (hereinafter "information"), is to be kept secret. In particular, all information received in the context of the project assignment, including - among others - any data of the client and the client's specifications, must be kept secret.
5.2. Such information may not be reproduced or used without the prior written consent of WorkGenius. At WorkGenius' request, all data (including copies and records) must be returned to WorkGenius wholly and immediately or destroyed.
6. Rights to results
6.1. Insofar as the freelancer acquires rights to the results, in particular copyrights, rights to a name, or industrial property rights, he/she grants the client an exclusive, transferable, and sublicensable right, unlimited in time and space, to utilize and process the results in all known and unknown types of use.
6.2. In particular, WorkGenius is entitled to forward the results to the client, as well as all the rights.
6.3. In particular, this includes the right to reproduce, distribute, exhibit, present, store, transmit, and process the results in any way.
6.4. WorkGenius is free to decide whether the results are to be exploited in return for payment or free of charge.
6.5. The freelancer waives the right to be named when the results are published, particularly as the author.
6.6. If the freelancer is entitled to recall rights with regard to the ones granted in this clause, in particular, in accordance with § 41 UrhG (German Copyright Act), he/she waives the right to exercise these rights for five years after the copyright's law arises. In any case, WorkGenius shall retain a simple right of use in accordance with this clause for the text concerned even in the event of a recall. Any exclusion of the right of recall for other reasons remains unaffected.
6.7. The freelancer agrees to grant WorkGenius all the above rights.
6.8. The freelancer further assures that the results of his/her submission do not infringe any rights, particularly copyrights, rights to names or industrial property rights, or third parties.
6.9. The freelancer shall indemnify WorkGenius against all claims made against the latter for breach of this clause.
7. Remuneration, user account and taxes, handling of payments via trustees
7.1. If the freelancer successfully completes a project the client accepts it, WorkGenius will pay the freelancer the net fee, as stated in the project description. If the freelancer is to be regarded as an entrepreneur for VAT purposes, WorkGenius will also pay the statutory VAT.
7.2. WorkGenius receives a commission from the client on the net fee paid by him/her.
7.3. Therefore, the project description will not show the client’s net fee when the project is posted, but the part of the net fee that the freelancer actually earns (the net fee offered by the client minus WorkGenius' net commission).
7.4. WorkGenius shall process the payment transactions through the trustee Hyperwallet in the sense that the client pays the remuneration to Hyperwallet upon acceptance of the project by the freelancer. Hyperwallet then pays the remuneration pursuant to this clause plus any applicable VAT by crediting the freelancer's user account and only when the freelancer duly completes a project, and the client accepts it.
7.5. No interest shall be accrued on the user account.
7.6. The freelancer may, at any time, request Hyperwallet in writing to pay out any credit balance in the user account to a bank account to be named by the freelancer. For this purpose, registering with Hyperwallet and presenting an identification document is required. For technical reasons, registration with Hyperwallet can only be carried out when a payment request is made and not upon registration with WorkGenius.
7.7. Any costs and fees arising from a transfer to a bank account outside Germany shall be borne by the freelancer. The costs of Hyperwallet shall be borne by WorkGenius.
7.8. Payment is due within two weeks after receipt of the request for payment.
7.9. WorkGenius will issue the freelancer a credit note for each amount paid out. It will furthermore indicate any applicable VAT.
7.10. WorkGenius is entitled to offset and withhold payment.
7.11. The freelancer is responsible for ensuring that in the context of his/her business relationship with WorkGenius, the social security and tax regulations applicable to his/her place of residence and him/her are observed.
8.1. WorkGenius is only liable for compensation in the event of a fault. Claims for damages - regardless of the legal basis - of the freelancer for damage caused by slight negligence are excluded. This does not apply if an obligation has been breached, which is essential for achieving the purpose of the contract.
8.2. WorkGenius' liability for the breach of a material contractual obligation is limited to the extent of damage that could typically be expected to occur when the project was stopped based on the circumstances known at that time.
8.3. Claims for damages under the Product Liability Act, for injury to life, limb, or health, the assumption of a guarantee, and claims for damages based on grossly negligent or willful conduct on the part of WorkGenius shall remain unaffected.
8.4. WorkGenius accepts is not liable for the continuous availability or functionality of the website and the services offered on it.
8.5. WorkGenius further accepts no liability in the event that the projects, their fulfillment, the results, or the submission thereof violate the law or third parties’ rights. Should WorkGenius nevertheless be claimed by third parties, the freelancer undertakes to keep WorkGenius fully unaffected.
9.1. Either party can terminate this contract with one month's notice to the end of the month.
9.2. Termination without notice for a good cause remains unaffected.
9.3. Terminations must be effected in writing.
9.4. Projects that have already been assigned to freelancers but not yet been completed at the time of termination of this agreement shall remain unaffected by the termination unless a right of termination is also effectively exercised concerning these projects.
9.5. Any credit balance in the user account at the time of termination is paid out to the freelancer after termination. No interest will be paid.
9.6. Upon termination of the contract, WorkGenius will delete all access and personal data.
10. Offsetting and retention
10.1. The freelancer can only offset or exercise a right of retention against WorkGenius' claims if these are undisputed or have been legally established. The freelancer is at liberty to assert his/her claims in court.
11. Data privacy
11.1. The parties concerned agree that WorkGenius must process the freelancer's personal data as part of working on the projects and will pass it on to the clients and Hyperwallet. The freelancer consents to the processing and forwarding of his/her personal data.
12. Final provisions
12.1. Amendments and supplements to this contract must be in writing to be effective (electronic form (§ 126 a BGB) or text form (§ 126 b BGB) is sufficient. This also applies to the cancellation of the requirement of written form.
12.2. The business relationship and all agreements based on the projects between WorkGenius and the freelancer are exclusively subject to German law, excluding the provisions of international private law. The application of the provisions of the UN Convention on Contracts for the International Sale of Goods (CISG) is excluded.
12.3. The place of performance and jurisdiction for all disputes arising out of or in connection with the business relationship and the agreements based on the projects between WorkGenius and the freelancer is - to the extent permitted by law - Hamburg. However, WorkGenius may also take legal action against the freelancer at the freelancer's place of residence.
12.4. Should individual provisions of this contract be invalid, void, or impracticable in whole or in part, this shall not affect the validity of the remaining provisions. The ineffective, void, or impracticable provision shall be deemed to be replaced by a provision which comes as close as possible to the economic intent of the contracting parties at the time of conclusion of the contract. The above applies analogously to contractual loopholes.