Article 1. Definitions
The capitalized terms in these Terms and Conditions, both singular and plural, are
considered to have the meaning as described in this article:
- Account: the personal account which the Client can create via the Platform, for the purpose of enabling use of the purchased Services.
- Agreement: any Agreement between Equalture and the Client under which Equalture delivers Services to the Client, and of which these Terms and Conditions form an integral part.
- Applicants: potential employees which can create an Account via the Platform as a job applicant and which can share and/or make available their resumes and profile to potential employers (like the Client).
- Client: the natural person or legal entity, acting in a professional capacity, with whom Equalture has concluded an Agreement.
- Data Processing Addendum: the addendum attached as an annex to these Terms and Conditions, governing the processing of personal data through the use of the Services, which forms an integral part of the Agreement.
- Equalture: Equalture B.V with its registered office at Hofplein 20, Rotterdam (the Netherlands) and registered with the Chamber of Commerce under number 69620172.
- Terms and Conditions: these terms and conditions.
- In Writing: dated and signed correspondence on paper. In addition, this also includes email and fax messages, insofar as the origin and integrity of such messages can be sufficiently established.
- Intellectual Property Rights: all intellectual property rights and related rights, including, but not limited to, copyright, database rights, domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights as well as rights to know-how.
- Office Hours: the hours between 9:00 am and 5:00 pm Dutch time, Monday to Friday, excluding official Dutch national holidays.
- Party/Parties: the parties to the Agreement, Equalture and the Client, individually or jointly.
- Platform: the online platform of Equalture, assessable via equalture.com, on which the recruitment procedure between Applicants and potential employers (like the Client) can take place.
- Services: all services that Equalture delivers to the Client under the Agreement, including, but not limited to: (i) the provision of the Platform, (ii) the maintenance of the Platform (iii) the provision of the screenings- and matching process.
- Vacancy material: all works, for instance text and images, which the Client provides to Equalture for the purpose of publishing on the Platform and inviting Applicants to apply for the vacancy of the Client.
Article 2. Conclusion and fulfilment of the Agreement, applicability, term and termination
- The Agreement will commence upon by the registration on the Platform by the Client and the confirmation of the registration by Equalture.
- The Terms and Conditions apply to the registration process, the use of the Account by the Client, the screenings- and matching process and to the use of the Services by the Client.
- The applicability of any terms and conditions of the Client is explicitly excluded.
- The Agreement will commence upon the date of registration by means of creating an Account by the Client and the confirmation of the registration by Equalture and will then remain in force for one year, except when the Parties have explicitly agreed otherwise. In the event the Agreement is concluded for an indefinite period, the Agreement will be tacitly renewed for the initial term of the Agreement.
- In the event the Agreement is concluded for a specific period, the Agreement can be terminated towards the end of the term of the Agreement, subject to a notice period of one month.
- Both Parties are entitled to terminate the Agreement, concluded for an indefinite period, at any time subject to a notice period of one month.
- Equalture may suspend or give notice to terminate the Agreement In Writing with immediate effect, without notice of default being required, if the Client defaults on a material obligation under the Agreement. This does not affect any sums paid or payable by Client under the Agreement.
- Equalture may suspend or give notice to terminate the Agreement In Writing with immediate effect, without notice of default being required, in the event the Client is declared bankrupt, the Client applies for or is granted suspension of payments, the Client’s activities are ceased or its business is wound up.
- Where Equalture suspends the performance of the Agreement, Equalture will retain all its rights and claims under the Agreement and the applicable laws and regulations.
- In the event that the Agreement is terminated, the amounts owed to Equalture by the Client will become immediately due and payable (irrespective of the reason for the termination).
- Any dissolution of the Agreement, in full or in part, does not affect any sums paid or payable by Client under this Agreement. As such, no reversal of payments shall take place.
Article 3. Delivery of Services
- The Services of Equalture enable the Client to easily find suitable Applicants, on the basis of their resume, skills and personality.
- The Client entitles Equalture to fulfil an intermediary role in creating a match between an Applicant and the Client.
- The Client will provide Equalture with all the support needed and desirable to enable the correct and timely performance of the Services. In any event, the Client will provide all the data and other information which Equalture indicates are necessary, or which the Client should reasonably understand are essential for the delivery of the Services.
- Equalture will take into account any reasonable requests of the Client when fulfilling the Agreement, but is not obliged to comply with such requests. Equalture may charge additional costs for complying with a request. Equalture will provide its reasons in the event a request by the Client cannot be complied with.
- Equalture may engage third parties for the purpose of fulfilling the Agreement. Any associated costs will only be for the Client’s account where this has been agreed in advance.
Article 4. Division of responsibilities
- Equalture shall perform the Agreement to the best of its ability, exercising due care and expertise. In relation to the Services, Equalture shall have an obligation to use reasonable endeavours and no obligation to achieve results. Statistics and/or estimates referred to in the Services are indicative only and form no guarantee whatsoever. The Services are subject to typographical and calculation errors.
- Exceeding agreed upon delivery times, whatever the cause or reason, shall not result Equalture being in default and Client has no entitlement to any compensation, such as damages caused by delay.
- Equalture only fulfils an intermediary role in creating a match between an Applicant and the Client, and is not a party to any (labour) agreements which the Client concludes (whether or not via the Platform) with an Applicant.
- A (labour) agreements between the Applicant and the Client are established at the time and in the manner set by the Client. The Client may impose terms and conditions concerning the fulfilment of a labour agreement. Equalture does not affect the content of the terms and conditions of the Client and/or the applicability of them.
- If and insofar both Parties have agreed that Equalture, in the context of delivering the Services, shall publish a vacancy on the Platform on behalf of the Client, the Client is obliged to provide Vacancy material to Equalture. The Client authorizes Equalture to reproduce, edit and/or publish the Vacancy material.
- Equalture is not liable for any loss and/or damage sustained as a result of not providing Vacancy material to Equalture.
- The Client represents and warrants that the Vacancy material does not violate applicable laws and regulations. In particular, the Vacancy material must not:
- be offensive, racist, discriminatory or hateful;
- infringe any third-party (intellectual property) rights.
- The Client will indemnify and hold harmless Equalture from any and all damages, losses and/or expenses incurred by Equalture arising from any third-party claim that the Vacancy material, in whole or in part, infringe on the intellectual property rights (including, without limitation, copyrights and trademarks) or any other rights of a third party.
Article 5. Use of the Services
- To use the Service, after conclusion of the Agreement, the Client needs an Account.
- The Cient must secure access to the Account by protecting the username and password against third party access. In particular the Client must keep the username and password strictly confidential. Equalture may assume that all actions undertaken from Client’s Account after logging in with the username and password is authorized and supervised by the Client. This means that the Client is liable for these actions.
- Creating an Account does not provide any guarantee of finding suitable Applicants, nor for filling the vacancies.
Article 6. Rules of use
- It is prohibited to use the Services in a manner that is in violation of these Terms and Conditions or applicable laws and regulations. Additionally, using the Services in a manner that may cause hindrance or loss and/or damage to Equalture or any third party is expressly not permitted.
- If Equalture determines that the Client has violated these Terms and Conditions or the law, or receives a complaint in this regard, Equalture may take measures to end the violation. Equalture will then block access to the information in question.
- If, in Equalture's sole discretion, the operation of the computer systems or network of Equalture or third parties and/or service provision via the internet is obstructed, impaired or otherwise at risk, in particular as a result of the transmission of excessive amounts of e-mail or other data, leaked personal data or virus activity, Trojan horses and similar software, Equalture is authorised to take any and all measures it deems reasonably necessary to avert or prevent such risk. These measures include, but are not limited to, suspension of the Services and termination of the Agreement.
- Equalture is authorised at all times to report any criminal acts that are discovered and will cooperate with duly authorised orders and commands. In addition, Equalture is authorised to provide the name, address, IP address and other data identifying the Client to a third party who has complained that the Client has violated its rights or these Terms and Conditions, provided that:
- it is sufficiently plausible that the information, on its own, is unlawful and harmful with regard to the third party;
- the third party has a genuine interest in obtaining the data;
- it is plausible that, in the specific case, there is no less far-reaching measure to obtain the data; and
- examining the interests involved entails that the third party’s interest should prevail.
- The Client shall follow all reasonable instructions issued by Equalture related to the use of the Services.
- Equalture may recover from the Client any loss and/or damage sustained as a result of violations of the rules under this article. The Client indemnifies Equalture against any and all third-party claims pertaining to loss and/or damage arising from a violation of the rules under this article.
Article 7. Modifications and maintenance
- Equalture may modify the Services to correct errors, add new functionality or improve performance. While the Parties may consult on such modifications in advance and the Client may make suggestions, the final decision on whether or not to implement the modification will be made by Equalture.
- If, in Equalture’s opinion, modifications will result in a significant change in the functionality of the Services, Equalture will notify the Client of the modifications in advance by e-mail.
- Equalture will endeavour to remedy any defects in the Services, but is also dependent on its Client in this regard. Equalture is entitled to not install certain updates or upgrades of Client it if believes that installing such updates or upgrades will not benefit the operation of the Services.
- If implementing modifications and improvements may have the effect of restricting the availability of the Services, this will be carried out as far as possible outside Office Hours. Emergency maintenance may be carried out at any moment and will not be announced in advance.
Article 8. Support
- Equalture will offer the Client a reasonable level of support with regard to questions about the use of the Services, as well as with technical issues related to the Services.
Support requests, as referred to in Article 8.1, can be addressed to Equalture via the contact form on equalture.com
- Equalture endeavours to handle requests submitted to the help desk within a reasonable period. The time needed to resolve reported issues may vary.
Article 9. Availability
- Equalture will make reasonable efforts to realize the uninterrupted availability of its Platform, but offers no guarantees in this respect.
- If, in Equalture's opinion, a risk is posed to the operation of the computer systems or network of Equalture or third parties, for example in the event of a D(DOS) attack or malware activities, Equalture is authorised to take any and all measures it deems reasonably necessary to avert the risk and limit or prevent any loss and/or damage. This may result in degraded availability.
Article 10. Privacy and security
- Equalture will use reasonable endeavours to protect the Services against misuse, abuse and unauthorised access to the Client’s data.
- The Client warrants that any submission or uploading of (personal) data to Equalture is lawful and that the processing of such data in accordance with the Agreement does not contravene any applicable privacy laws and regulations.
- During the processing of personal data, Equalture and the Client shall adhere to the requirements of applicable privacy laws and regulations in accordance with the Data Processing Addendum.
Article 11. Compensation and payment
- Client shall be charged a compensation during the term of the Agreement.
Equalture will issue an invoice for all amounts owed and may invoice in advance and electronically.
- All invoices are subject to a payment term of thirty (30) calendar days, unless the invoice specifies a different payment term or another term has been agreed In Writing.
- If an invoice is not paid within the payment term, the Client will be in default without notice of default being required. In that case, Equalture may suspend the delivery of all or part of the Services. Equalture is not liable for any resulting loss and/or damage incurred by the Client as a result of the suspension.
- All amounts owed to Equalture are immediately due and payable in the event the Client is declared bankrupt, the Client applies for or is granted suspension of payments, the Client’s activities are ceased or its business is wound up.
- All prices quoted by Equalture are in euros and are exclusive of VAT and other government taxes and duties.
- If a fee is based on information provided by the Client and such information proves to be incorrect or incomplete, Equalture is authorised to adjust the fee accordingly, even after the Agreement has already been concluded.
- Fees that are due periodically, can be increased annually in accordance with the applicable Consumer Price Index or a different index or standard agreed between the Parties.
- If the Client fails to pay the amounts due within the agreed term, the Client shall be liable for payment of the statutory commercial interest, as referred to in Section 6:119a of the Dutch Civil Code, on the outstanding amount, without notice of default being required.
- If, after receiving a demand for payment or notice of default, the Client fails to pay the amount due, Equalture may refer the claim for collection, in which case the Client shall also be liable to pay in full all judicial and extrajudicial costs, including all costs and fees of lawyers and external experts, in addition to the total amount due at that time.
Article 12. Liability and force majeure
- Equalture's liability for loss and/or damages resulting from a failure in the performance of the Agreement, an unlawful act or otherwise, is limited to the amount (exclusive of VAT) that the Client has paid under the Agreement during the six months immediately preceding the breach or the act giving rise to liability.
- Equalture is only liable for direct loss and/or damage arising from an attributable failure in the performance of the Agreement. Direct loss and/or damage is solely understood to mean any and all loss and/or damage consisting of:
- the damage caused directly to tangible objects ('property damage');
- reasonable and demonstrable costs the Client has had to incur in demanding that Equalture properly performs the Agreement, unless the defective performance is not attributable to Equalture;
reasonable costs to determine the cause and the extent of the direct loss and/or damage;
- reasonable and demonstrable costs incurred by the Client to prevent or limit the direct loss and/or damage, insofar as the Client can demonstrate that such costs have resulted in limitation of the direct loss and/or damage;
- reasonable and demonstrable costs for having the Agreement fulfilled by a third party, where Equalture, after receiving notice from the Client, fails to ensure proper performance within the reasonable term stipulated in the notice.
- Any limitation or exclusion of liability stipulated in the Agreement shall not apply in the event that the loss and/or damage is attributable to (1) wilful misconduct or deliberate recklessness on the part of Equalture’s management, or (2) death or bodily injury.
- Any right to claim compensation is at all times subject to the condition that the Client notifies Equalture of the loss and/or damage In Writing within no more than thirty (30) calendar days of its discovery.
- Equalture cannot be obliged to perform any obligation under the Agreement if the performance is prevented due to force majeure. Equalture is not liable for any loss and/or damage due to force majeure.
- Force majeure is considered to exist in any event in case of power outages, Internet failures, telecommunication infrastructure failures, network attacks (including D(DOS) attacks), attacks by malware or other harmful software, civil commotion, natural disaster, terror, mobilisation, war, import and export barriers, strikes, stagnation in supplies, fire, floods and any circumstance whereby Equalture is not able to perform or prevented from performing as a result of its suppliers, irrespective of the reason thereto.
- If a force majeure situation has lasted for more than ninety (90) calendar days, both Parties shall be entitled to give notice to terminate the Agreement In Writing with immediate effect. The Services which in that case have been delivered by Equalture prior to the occurrence of the force majeure situation and during the force majeure situation will be paid for on a pro rata basis.
- Equalture acts as an intermediary for creating a match between the Client and the Applicant. Equalture is not liable for failures in the performance of the (labour) agreement, since Equalture does not form a party to this agreement.
Article 13. Intellectual property
- All Intellectual Property Rights to the Services that are provided by Equalture under the Agreement shall remain the property of Equalture or its licensors.
- The Vacancy material is and remains the Client’s property (or the property of the Client’s suppliers or licensors). Equalture will receive a limited license to use the Vancancy material for the Platform. After the vacancy has been filled, the vacancy will be closed and the Vacancy material will no longer be publicly available on the Platform.
- The Client will receive from Equalture the non-exclusive, non-transferrable and non-sublicensable limited rights to use the Services. The rights of use apply for the duration of the Agreement. No rights are granted to Client hereunder other than as expressly set forth in the Agreement.
- The Client entitles Equalture to use the Vacancy material in the context of delivering the Services and entitles Equalture to edit the Vacancy material, in the event editing is required for the provision of the Services.
- The Client is not authorised to make changes in the Services and is not entitled to a copy of the source files of the Services, except in cases where that is permitted under mandatory law.
- Equalture may implement technical or other measures to protect the Services. Where Equalture has implemented such measures, the Client may not remove or circumvent these measures.
Article 14. Amendment of Terms and Conditions
- Equalture may amend these Terms and Conditions at any time if the changes are not significant or are required by applicable mandatory law.
- Equalture will endeavour to announce the changes or additions to the Client by e-mail at least thirty (30) calendar days before they take effect.
- If the Client does not wish to accept a change or addition, not being a change or addition pursuant to article 14.1 of these Terms and Conditions, the Client may give notice to terminate the Agreement until the date it takes effect. Use of the Services after the effective date will be regarded as acceptance of the amended or supplemented terms and conditions.
Article 15. Confidentiality
- The Parties shall protect information that is marked as confidential, or which under the given circumstances should reasonably be regarded as confidential (‘Confidential Information’), by a reasonable degree of care against unauthorized disclosure.
- Each Party warrants that any employees that have a need to know Confidential Information are bound by confidentially provisions which are at least as stringent as provided in the Agreement.
- Confidential Information may be disclosed in response to a valid court or other governmental order, provided (if permitted by such order) the disclosing Party is notified as soon as possible after receipt of the order and given the opportunity to seek legal redress against such disclosure, for instance by obtaining a preliminary injunction from a competent court.
- Information which would otherwise be Confidential Information shall not be deemed Confidential Information to the extent that the receiving Party proves by written records that said information:
- is or has become publicly available without any wrongdoing by the receiving Party;
- was lawfully obtained by the receiving Party prior to the date it was disclosed by the disclosing Party;
- is lawfully obtained by the receiving Party from a third party, provided that the third party does not breach any confidentiality obligation towards the disclosing Party; or
- is independently developed by the receiving Party and without the use of any information of the disclosing Party.
- Upon first request of the disclosing Party, the receiving Party shall destroy or return to the disclosing Party all Confidential Information received in written or other tangible form, including all copies thereof.
Article 16. Exit
- After the Agreement has been terminated in accordance with Article 2, Equalture will retain all data and other details of the Client for a period of thirty (30) calendar days. After this period, all data and other details of the Client will be deleted from Equalture’s systems.
Article 17. Final provisions
- This Agreement is governed exclusively by Dutch law, without regard to its conflict of laws provisions.
- Any dispute between the Parties in connection with the Agreement will be submitted to the competent court in the Netherlands in the district where Equalture has its registered office.
- The version of any communication of information as recorded by Equalture shall be deemed to be authentic, unless the Client supplies proof to the contrary.
- If any provision of the Agreement is found to be contrary to applicable law, or is otherwise unenforceable, this provision will be amended to the extent that it is in accordance with applicable law, with due observance of the intended meaning of the relevant provision.
- The Client will not be authorised to transfer this Agreement or any of its rights and obligations arising therefrom to a third party without the express consent of Equalture. Equalture will be authorised to transfer this Agreement and all its rights and obligations arising therefrom to a third party that acquires the business operations to which this Agreement is subject.
DATA PROCESSING ADDENDUM
The below Data Processing Addendum is entered into by and between the Client and Equalture. This Data Processing Addendum applies to the processing of Personal Data through the Services provided by Equalture and forms an integral part of the Agreement. Capitalized terms not otherwise defined in this Data Processing Addendum shall have the meaning given to them in the Terms and Conditions.
Article 1. Definitions
- In this Data Processing Addendum, ’GDPR’ means the EU General Data Protection Regulation as well as all laws and regulations that may replace this regulation in the future.
- Terms defined in the GDPR have the same meaning in this Data Processing Addendum, unless another definition is given here.
- ‘Personal Data’ means personal data as defined by the GDPR.
- ‘(Sub-)Processor’ means a legal entity or person, not being a member of a Party’s staff, who is or will be engaged by such Party for the purpose of providing products or services, for which purpose the engaged person or entity may receive or have access to Personal Data.
Article 2. Obligations of the Parties
- The Personal Data of Applicants, which can be processed in connection with the Services, may include one or more of the following data:
- E-mail address
- Telephone number
- Date of birth
- Country of residence
- City of residence
- Resume including relevant work experience and education
- Results of psychological test
- The Parties declare to process the Personal Data of the data subjects, in a proper and careful manner. Each Party is individually responsible for compliance with applicable (privacy) laws and regulations during its individual processing activities.
- Equalture shall be responsible for the processing of Personal Data within its own systems, until the Personal Data are transferred to the Client. The Client shall be responsible for the further processing of the Personal Data, after receipt of the Personal Data.
- The Client will only process the Personal Data in order to complete its recruitment procedures.
- Equalture will process the Personal Data in order to facilitate the Client’s recruitment procedures. If the Applicant has given consent for this, Equalture may use the Personal Data for analytical purposes in order to improve its Services, such as psychological tests. If the Applicant has given consent for this, Equalture may include the Personal Data in a database which other employers can use to search for Applicants.
- The obligations arising from this Data Processing Addendum also apply to those who process Personal Data under the authority of (one of the) Parties, including but not limited to employees.
- In case one of the Parties engages a (Sub-)Processor, this Party shall ensure that the (Sub-)Processor processes the Personal Data in a proper and careful manner and in accordance with applicable laws and regulations and this Data Processing Addendum. Between the Party that engages the (Sub-)Processor and the (Sub-)Processor, a data processing agreement must be concluded that at least imposes the same obligations to the (Sub-)Processor as the Parties have agreed to in this Data Processing Addendum.
- The Parties will only provide each other with the amount of Personal Data that is necessary for the execution of the Agreement. In order to eliminate possible biases in the recruitment procedure, certain Personal Data (name, gender, date of birth, place of birth) will only be disclosed by Equalture to the Client after the Applicant has been selected for the second phase of the recruitment procedure. The Client will be provided with a possibility to indicate to Equalture which Applicants it wishes to select for the next phase of the recruitment procedure.
- From the 25th of May 2018, the Parties shall maintain a record of their processing activities under this Data Processing Addendum in accordance with the GDPR.
Article 3. Security and protection of Personal Data
- The Parties are individually responsible for the protection of Personal Data, processed under their own responsibility.
- The Parties shall take adequate technical and organisational measures against loss or any form of unlawful processing (such as unauthorised disclosure, deterioration, alteration or disclosure of Personal Data).
- At the request of one Party, the other Party will provide the requesting Party with information about the security measures that have been taken in order to adequately protect the Personal Data of the data subjects.
Article 4. Personal data breaches
- In the event of a personal data breach (a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise processed; unless the personal data breach is unlikely to result in a risk to the rights and freedoms of natural persons) regarding the Personal Data processed in connection with the Services, the Parties shall, to the best of their ability, notify each other thereof without undue delay, but no later than thirty-six (36) hours after its discovery. The notification obligation applies irrespective of the impact of the personal data breach.
- In case the personal data breach (as described in article 4.1) is discovered by the Client, the Client will notify Equalture by e-mail via email@example.com and by telephone via +31 10 310 08 26. In case the personal data breach is discovered by Equalture, Equalture will notify the Client through the contact details submitted by the Client in its Account. After notification of the personal data breach (as described in article 4.1), the Parties will discuss in good faith what the (potential) consequences of the personal data breach are for both Parties, and how each Party should minimise the (potential) damage.
- The Parties are and remain individually responsible for reporting a personal data breach, occurred during the processing under its own responsibility, to the applicable supervisory authority and/or the affected data subjects.
- The Parties will provide each other with the reasonably necessary assistance, such as by providing the relevant information, in order to help the other Party to notify the personal data breach to the supervisory authority and/or the affected data subjects.
Article 5. Handling requests from data subjects
- Where a data subject submits a request to one of the Parties to exercise one of its legal rights, this Party will deal independently with this request if it falls within the scope of processing for which the Party concerned is responsible.
- If the request (as described in article 5.1) relates to the processing for which the requested Party is not responsible, then the Party that received the request will forward this request to the responsible Party. The data subject may be notified hereof.
- To the extent necessary, the Parties will assist each other mutually in order to enable the data subject to exercise its legal rights.
Article 6. Non-disclosure and confidentiality
- All Personal Data disclosed by and between the Parties within the framework of this Data Processing Addendum is subject to a duty of confidentiality vis-à-vis third parties.
- This duty of confidentiality will not apply in the event that Equalture (i) has expressly authorised the furnishing of such information to third Parties, (ii) where the furnishing of the information to third parties is reasonably necessary with a view to the nature of the instructions and the implementation of this Data Processing Addendum, or (iii) if there is a legal obligation to make the information available to a third party.
- If one of the Parties is required, by a legal obligation or a judicial decision, to provide a third party with the Personal Data of data subjects, this Party shall immediately inform the other Party about this, unless applicable law or the judicial decision precludes this Party from doing so.
Article 7. Duration and termination
- This Data Processing Addendum is concluded for the duration set out in the Agreement, and may not be terminated for convenience.
- Both Parties are individually responsible for creation of retention periods regarding the Personal Data processed under this Data Processing Addendum. Additionally, both Parties are individually responsible for deletion of the Personal Data when the processing of the Personal Data is no longer necessary for the purposes for which the Personal Data are processed.
- This Data Processing Addendum may only be amended by the Parties In Writing, and subject to mutual consent.
- Both Parties shall provide their full cooperation in amending and adjusting this Data Processing Addendum in the event of any new or amended (privacy) laws and regulations.