General Terms

General Terms Recrout 2022

Article 1 Definitions

1.1  In these General Terms and Conditions and the Agreement, the following terms, both singular and plural and always written with a capital letter, have the following meaning:

  1. a) Acceptance procedure:the acceptance procedure as described in Article 10; 
  2. b) Terms and Conditions:these terms and conditions of Recrout; 
  3. c) Structural Maintenance: the Service concerning the performance of maintenance by Recrout consisting of the launch of upgrades (new releases) and/or updates of the Standard Software;
  4. d) Corrective Maintenance: the Service concerning the performance of maintenance by Recrout in response to Errors that have arisen;
  5. e) Service: the service that Recrout provides to the Client , as described in the Agreement;
  6. f) Documentation: the user and technical documentation associated with the Customized Software and/or the Standard Software;
  7. g) Duration: the duration of the Agreement, as described in Article 23;
  8. h) Errors: substantial non-compliance with the functional specifications expressly agreed between the Parties in writing. An Error only exists if the Customer can demonstrate it and if it is reproducible;
  9. i) Recovery time: the time between (1) the time when Recrout identified an Error or Customer reported an Error and (2) the time when the Error was resolved, (the Error in) the Software was replaced, or a workaround has been created, as determined by Recrout;
  10. j) Intellectual Property Rights : all intellectual property rights and related rights, such as copyrights, trademark rights, patent rights, design rights, trade name rights, database rights and neighboring rights, as well as domain names and rights to know-how;
  11. k) Customer: the party with whom Recrout has concluded the Agreement;
  12. l) Custom software: the custom software developed specifically for the Customer on the basis of the Standard Software , including the associated Documentation, look-and-feel, interfaces, layout and other matters as further described in the Agreement;
  13. m) Materials: materials such as, but not limited to, analyses, designs, documentation, reports and quotations;
  14. n) Additional work: the activities or other performances performed or to be performed by Recrout, which fall outside the content and/or scope of the agreed activities and/or performances and/or concern changes thereto;
  15. o) Recrout: the private limited company Recrout BV, with its registered office at Tupolevlaan 73, 1119 PA Schiphol-Rijk under registration number (Dutch Chamber of Commerce) KVK nummer: 63509008
  16. p) Maintenance: the Service that Recrout can provide to the Client on the basis of a separate Agreement, consisting of the Corrective Maintenance and the Structural Maintenance;
  17. q) Agreement: the Agreement between the Client and Recrout;
  18. r) Parties: Client and Recrout;
  19. s) Response Time: the time between (i) the time at which the Client has reported an Error and (ii) the time at which Recrout starts repairing the Error, as determined by Recrout;
  20. t) Software: the Standard Software and any Custom Software;

you)     Standard software : the standard software of Recrout, including the associated Documentation, look-and-feel, interfaces, layout and other matters, as further described in the Agreement; 

  1. v) Working day: from 10:00 am to 6:00 pm on Monday to Friday, with the exception of public holidays recognized in the Netherlands.

 

Article 2 Applicability

2.1 The General Terms and Conditions apply to the Agreement, the use of the Software, the provision of Services and all offers from Recrout.

2.2  Deviations from and additions to the General Terms and Conditions and/or Agreement are only valid if agreed in writing between the Parties.

2.3  If a provision of the General Terms and Conditions proves to be in conflict with provisions of the Agreement, the relevant provision of the Agreement will prevail.

2.4  Any purchase or other conditions of the Customer are expressly rejected by Recrout.

2.5  If any provision of the Terms and Conditions is void or voided, the remaining provisions of the Terms and Conditions will remain in full force and effect. Recrout will replace the void or voided provisions with new provisions, taking into account as much as possible the purpose and intent of the void or voided provision.

2.6  If any provision of the Agreement is void or voided, the Parties will in such a case consult in order to agree on new provisions to replace the void or voided provisions, whereby as far as possible the purpose and purport of the void or voided provision is taken into account.

2.7  The data of Recrout are leading, unless the Client proves otherwise.

 

Article 3 Obligations of the Client and performing work

3.1  The Client acknowledges that the success of the work under the Agreement, including but not limited to the provision of the Software and/or the provision of Services, as included in the Agreement, depends on correct and timely mutual cooperation. In order to enable the proper execution of the Agreement by Recrout, the Client will always provide Recrout in a timely manner with all data and/or information deemed useful, necessary and desirable by Recrout and will provide full cooperation. Recrout makes every effort to provide the Software and/or Services with due observance of due care and craftsmanship.

3.2  If the Client deploys its own personnel and/or auxiliary persons in the context of cooperating in the implementation of the Agreement, this personnel and auxiliary persons will have the necessary knowledge, expertise and experience.

3.3  If it has been agreed that the Client will make equipment, software, Materials or data on information carriers available to Recrout, these will comply with the specifications necessary for the performance of the work. Customer guarantees that no rights of third parties preclude the provision or use of such equipment, software, Materials or data and will indemnify Recrout against any action based on the allegation that making available or using such equipment infringes any action that is based on any right of third parties.

3.4  If the Client does not make available to Recrout the data, documents, equipment, software, materials or employees deemed useful, necessary or desirable for the execution of the Agreement by Recrout, Recrout has the right to full or partial suspension of the execution of the Agreement and Recrout is also entitled to charge the costs incurred as a result in accordance with Recrout’s usual rates, without prejudice to Recrout’s right to exercise any other statutory and/or agreed straight.

3.5  Customer is responsible for the correct choice of computer, data or telecommunications facilities, including the Internet, and for their timely and complete availability.

3.6  Customer indemnifies Recrout and its suppliers against all claims, proceedings, losses and/or direct and/or indirect damage suffered by third parties, which are based on or arising from (i) the allegation that any activity of Customer is unlawful in any way, including but not limited to activities that are in conflict with these General Terms and Conditions, the Agreement and/or constitute an infringement of Intellectual Property Rights; and/or (ii) the unlawful and/or faulty performance of the Agreement by the Customer, in particular the obligations under this article.

 

Article 4 Payment

4.1  Customer pays Recrout the price for the Software and/or the Service as stated in the Agreement.

4.2  The Client cannot hold Recrout to offers or prices of which it could reasonably expect that the offer and/or price is a clear error or clerical error.

4.3  All prices are exclusive of turnover tax (VAT) and other levies imposed by the government.

4.4  All prices are in euros. Customer must make all payments to Recrout in euros.

4.5  All preliminary calculations and budgets issued by Recrout are only indicative, unless Recrout has expressly stated otherwise in writing. An available budget made known by the Client to Recrout never counts as a (fixed) price agreed between the Parties for the services to be performed by Recrout. Recrout is only obliged to inform the Client in the event of an imminent exceeding of a pre-calculation or budget, if this has been expressly agreed in writing between the Parties.

4.6  With regard to the amounts paid and/or owed by the Client, the relevant documents and data from Recrout’s records provide full evidence, without prejudice to the Client’s right to provide proof to the contrary.

4.7  The prices in the Agreement may be changed by Recrout without prior notice. If the Parties have agreed on a periodic payment obligation, Recrout is entitled to adjust the prices and rates in writing within a period of three (3) months. If the Customer does not agree with this price change, it is entitled to cancel the Agreement in writing within thirty (30) days after notification of the change, on the date on which the change would take effect. The Client does not have such a right to terminate if the parties have agreed that the prices and/or rates will be adjusted with due observance of an index or other standard agreed between the Parties.

4.8  All invoices will be paid by the Customer in accordance with the payment conditions stated in the Agreement and/or on the invoice. In the absence of specific conditions, the Client will pay within thirty (30) days of the invoice date.

4.9  The Customer is not entitled to set off or suspend any payment or amounts owed, for whatever reason.

4.10  If the Customer does not pay the amounts owed within the agreed term, the Customer will owe statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code on the outstanding amount, without any notice of default being required. If the Client continues to fail to pay the claim after a reminder or notice of default, Recrout can hand over the claim, in which case, in addition to the total amount owed at that time, the Client is also obliged to fully reimburse all extrajudicial and judicial costs, including all costs of lawyers and outside experts.

4.11  If the creditworthiness of the Client gives cause to do so, Recrout may require further security, failing which it may suspend the performance of the Agreement. The Client guarantees the correctness and completeness of the data provided to Recrout by or on behalf of it, on which Recrout bases its offer. The Client always takes the utmost care that the requirements that the Service of Recrout and/or the Software must meet are correct and complete. Information in images, catalogues, websites, quotations, advertising material and the like are not binding on Recrout.

 

Article 5 Additional work

5.1  If Recrout carries out Additional Work at the request or with the Client’s prior consent, the Client will reimburse this Additional Work in accordance with Recrout’s usual rates. Recrout is not obliged to comply with a request from the Client for the performance of Additional Work and may require that a separate written agreement be concluded for this purpose.

5.2  The Client accepts that Additional Work can influence and/or change the agreed and/or expected time for delivery of the Software, the mutual responsibilities of the Client and Recrout and any fixed price agreed in advance. The fact that (the demand for) Additional Work occurs during the execution of the Agreement is not a ground for the Client to terminate or dissolve the Agreement.

5.3  Purchase of new software, licenses, equipment and the like and repairs from third parties are not included in the standard rates and will be charged separately to the Customer, possibly directly by this third party.

 

Article 6 Intellectual Property Rights

6.1  The Intellectual Property Rights to the Software (including source codes), Documentation, software, websites, data files or Materials, as well as (other) preparatory material thereof, rest exclusively with Recrout. The Client only acquires the user rights granted to it by the Agreement, unless expressly agreed otherwise in a written document signed by Recrout and the Client.

6.2  The parties can agree that Recrout will make the Software and the accompanying Documentation available to the Client for use.

6.3  Unless otherwise agreed in writing, the obligation to make available by Recrout and the right of use of the Client exclusively extends to the so-called object code of the Software. Customer’s right of use does not extend to the source code of the Software.

6.4  Unless otherwise agreed in writing, Recrout is not obliged to make available any Software or program or data libraries other than the agreed upon, not even if they are necessary for the use and/or maintenance of the Software. If, contrary to the foregoing, Recrout must also make Software and/or program or data libraries other than the agreed upon availability, Recrout may require that the Client enters into a separate written agreement for this.

6.5  Unless otherwise agreed in writing, the right to use the Software is always non-exclusive, non-transferable, for the duration of the Agreement, and non-sublicensable. Recrout grants a limited right of use to the Software – there is no sale of (rights to) the Software.

6.6 The Client will always strictly comply with the restrictions on the right to use the Software agreed between the Parties. Customer is aware that violation of an agreed limitation of use constitutes both an attributable failure in the fulfillment of the Agreement and an infringement of the Intellectual Property Rights of the Software.

6.7  Unless otherwise agreed in writing, Customer may only use the Software in and for the benefit of its own company or organization and only for its intended use.

6.8  Unless otherwise agreed in writing, the Client will not perform any acts that may infringe Recrout’s Intellectual Property Rights, including but not limited to the unauthorized disclosure and/or reproduction of the Software, the licensing or sale of the Software to third parties and the registering domain names, brands or Google AdWords search terms

(keywords) that resemble or are identical to any character to which Recrout may assert Intellectual Property Rights.

6.9  It is expressly not permitted to download, copy, modify, disclose or in any other way make available (parts of the) Software, information and files, data, programs and/or Materials, for direct or use it for indirect commercial purposes or for any purpose other than the purposes stated in the Agreement, unless Recrout or the relevant rightful claimant has given permission for this, or mandatory legal rules provide otherwise.

6.10  The Client is expressly not permitted to modify the Software in whole or in part without the prior consent of Recrout. Recrout is always entitled to refuse permission or to attach conditions to its permission – including conditions regarding the manner and quality of implementation of the modifications desired by the Client. The Client bears the full risk of all modifications made by or on behalf of the Client by third parties – whether or not with the permission of Recrout.

6.11  The Client acknowledges and accepts that any unauthorized use of the Software, Documentation, software, websites, data files or Materials to which Recrout’s Intellectual Property Rights rest, violates the General Terms and Conditions and applicable law.

6.12  Recrout is allowed to take technical measures to protect the Software, Documentation, software, data files, websites or Materials. If Recrout has secured the Software, Documentation, software, data files, websites or other Materials by means of technical protection, the Client is not permitted to remove or circumvent this protection.

6.13  Except in the event that Recrout makes a backup copy of the Software, software, data files or websites available to the Client, the Client has the right to make at most one backup copy thereof. In these General Terms and Conditions, a backup copy is understood to mean: a tangible object on which the Software, software, data files or websites are recorded, solely to replace the original copy of the Software, software, data files or websites in the event of involuntary loss of possession or damage. The backup copy must be an identical copy and always bear the same labels and indications as the original copy.

6.14  Recrout will never be obliged to provide the Client (a physical carrier with) the Software in source code or other software used in the development of the Software (whether or not in source code form) or preparatory material.

6.15  Recrout may make third-party software available to the Client. The (license) conditions of those third parties may apply to this, setting aside the provisions that deviate therefrom in the General Terms and Conditions and Agreement. Customer guarantees that it accepts and will strictly comply with these terms and conditions of third parties. If and insofar as the aforementioned conditions of third parties are deemed not to apply or are declared inapplicable in the relationship between the Client and Recrout for whatever reason, the provisions of the General Terms and Conditions apply in full.

6.16 The Client guarantees that the rights of third parties do not preclude the provision of software, material intended for websites (such as image material, text, music, domain names, logos), data files or Materials and design material, for the purpose of use, editing, installation or incorporation in the Software and/or Documentation. Client indemnifies Recrout against any claim by a third party based on the claim that making it available, use, editing, installing or incorporating in such a way infringes any right of that third party, including Intellectual Property Rights.

6.17  Recrout reserves the right to (have a third party) check whether the Client uses the Software, Documentation, software, websites, data files or Materials as well as (other) preparatory material in accordance with the rights granted. Upon request, the Client will immediately cooperate fully with an investigation to be carried out by or on behalf of Recrout regarding compliance by the Client with the agreed usage restrictions. At the first request of Recrout, the Client will grant access to its buildings and systems to Recrout or a third party engaged by Recrout.

 

Article 7 Delivery, installation

7.1  If delivery has been agreed, Recrout will deliver the Software to the Customer in the agreed format of information carriers or, in the absence of clear agreements about this, the format of information carriers to be determined by Recrout or to the Customer using telecommunication facilities (online). Recrout determines the method of delivery.

7.2  Only if agreed in writing between the Parties, Recrout will install the Software at the Client. In the absence of explicit agreements in this regard, the Client itself will install, set up, parameterise, tune and, if necessary, adjust the equipment, hardware and user environment used. Unless otherwise agreed in writing, Recrout is not obliged to perform data conversion.

7.3  Recrout decides on the form, content and language in which the Documentation is provided.

7.4  The risk of loss, theft or damage to items, products, software or data that are the subject of the agreement transfers to the Customer at the moment when these are placed in the actual possession of the Customer or an auxiliary person of the Customer.

7.5  Customer will take good care of any equipment and/or materials that Recrout makes available to Customer.

 

Article 8 Time limits

8.1  All (delivery) periods stated by Recrout have been determined to the best of its knowledge on the basis of the information known to Recrout when the Agreement was entered into and they will be observed as much as possible. The (delivery) periods stated by Recrout and/or the (delivery) periods agreed between the Parties only relate to target dates, which are not binding on Recrout. These terms are only indicative. Recrout makes reasonable efforts to observe strict (delivery) terms and (delivery) dates as much as possible. Recrout is not bound by a (delivery) term or (delivery) date, whether fatal or not, which can no longer be met due to force majeure. Nor is Recrout bound by a (delivery) term or (delivery) date, whether fatal or not, if the Parties have agreed on additional work or a change in approach to the implementation of the Agreement.

8.2  The mere exceeding of a (delivery) term or (delivery) date stated by Recrout or a (delivery) term or (delivery) date agreed upon between the Parties shall not result in Recrout being in default. In all cases, Recrout will only be in default due to a time being exceeded after the Client has given it written notice of default. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, as well as a reasonable term to remedy the shortcoming.

Article 9 Custom software

9.1  The parties can agree that Recrout will develop Custom software for the Client. In such a case, Recrout will develop the Custom Software on the basis of the specifications agreed between the parties, as described in the Agreement. When signing the Agreement, the Client declares that it agrees with these specifications, and thereby declares that the specifications are complete, consistent and in accordance with its requirements and wishes.

9.2  In order to test whether the Customized Software meets the agreed specifications, the Parties will go through the Acceptance Procedure after delivery of the Customized Software. 

Article 10 Acceptance procedure

10.1  Within fourteen (14) calendar days after delivery of the Custom Software, Customer will test the Custom Software for acceptance. The Client will carry out the Acceptance Procedure on the Custom Software with sufficiently qualified personnel and with sufficient scope and depth.

10.2  During the Acceptance Procedure, the Client is obliged to check under its full and exclusive responsibility whether the Customized Software delivered meets the agreed specifications. Any assistance that Recrout provides in carrying out the Acceptance Procedure is entirely at the risk of the Client.

10.3 If, when performing the Acceptance Test, it appears that the Custom Software contains Errors, the Client will inform Recrout about this in a written, understandable and clear manner by means of a test report, at the latest on the last day of the Acceptance Procedure as referred to in Article 10.1. Recrout will make every effort to correct the said Errors within a reasonable period of time, whereby Recrout is entitled to implement temporary solutions, program bypasses or problem-avoiding limitations in the Custom Software. The Acceptance procedure will be repeated in accordance with this article until the Custom Software is accepted.

10.4  The Customized Software shall be deemed to have been accepted between the Parties:
a. on the first day after the test period as referred to in Article 10.1; or
b. from the moment that the Customer uses the Custom Software for productive or operational purposes, which use is expressly at the expense and risk of the Customer;
c. if Recrout receives a test report as referred to in Article 10.3 before the end of the test period as referred to in Article 10.1:
(1) if the test report does not contain Errors in the opinion of Recrout, without prejudice to the presence of imperfections that are not acceptable in the acceptance according to Article 10.5 standing away, from the date of the test report;
(2) at the moment that the Errors mentioned in the test report have been rectified, without prejudice to the presence of imperfections that do not prevent acceptance according to article 10.5.

10.5  Acceptance of the Custom Software may not be withheld on grounds that are not related to the agreed specifications and furthermore not because of the existence of minor Errors, being Errors that do not reasonably preclude the operational or productive use of the Custom Software. Furthermore, acceptance may not be withheld due to aspects of the Custom Software that can only be judged subjectively, such as aesthetic aspects and aspects concerning the look & feel and layout of the user interfaces.

10.6  Acceptance of the Customized Software in one of the ways referred to in this article results in Recrout being discharged from the fulfillment of its obligations regarding the provision and delivery of the Customized Software.

 

Article 11 Warranties

11.1  Customer accepts that the Software only contains the functionality and other properties as Customer will find them in the Software at the time of use (“as is”), therefore with all visible and invisible errors and defects. Recrout does not warrant that the Software will be available at all times, completely and without interruptions or defects.

11.2  Recrout does not warrant that the Software is suitable for Customer’s actual and/or intended use. Recrout also does not guarantee that the Software will function without Errors or that all Errors will always be corrected.

11.3  Recrout will use its best endeavors to rectify Errors in the Software within a reasonable period of time if these have been reported in writing to Recrout in writing within a period of three (3) months after acceptance as referred to in Article 10. Recrout can charge its usual rates for the correction of Errors, if there are usage errors or injudicious use by the Client or other causes not attributable to Recrout, or if the Errors could have been discovered during the execution of the Acceptance Procedure.

11.4  The aforementioned obligation to repair lapses if the Client makes changes or has changes made to the Software without the prior written consent of Recrout.

11.5  Errors are corrected at a location to be determined by Recrout. Recrout is always entitled to implement temporary solutions or program bypasses or problem-avoiding restrictions in the Software.

11.6  Recrout is not obliged to repair Errors that have been reported after the warranty period referred to in Article 11.3, unless a separate Agreement for Maintenance has been concluded between the Parties that includes such an obligation to repair.

 

Article 12 Maintenance

12.1  Recrout will make every effort to carry out the Maintenance in accordance with the agreements and procedures laid down in writing with the Client, if such has been agreed between the Parties.

12.2  If the Maintenance relates to software that has not been delivered to the Client by Recrout itself, the Client will, if Recrout deems this useful, necessary or desirable for the Maintenance, provide the source code and the technical (development) documentation of the software (including data models). , designs, change-logs, etc.). The customer guarantees that it is entitled to such provision and that no rights of third parties oppose this. The Client grants Recrout the right to use and change the software, including the source code and technical (development) documentation, in the context of performing the Maintenance. The customer indemnifies Recrout against all claims from third parties with regard to the provision and use that Recrout makes in the context of the maintenance of the material made available.

12.3  For the purpose of performing Maintenance, the Client undertakes to make the systems on which the Software is installed available in an accessible location with the necessary workspace, in accordance with any instructions from Recrout. The Client also undertakes to make all systems, test procedures and information carriers thereof available to Recrout in connection with testing their functioning. Insofar as the Maintenance will take place online, the Client will ensure a proper infrastructure and telecommunication facilities in a timely manner. Recrout is entitled to suspend or limit the performance of its activities if the infrastructure and telecommunications facilities of the Client do not meet the requirements set by Recrout.

12.4  The Maintenance by Recrout does not affect the Customer’s own responsibility for the management of the Software, including checking the settings, the use of the Software, creating users, maintenance of equipment and hardware, and the way in which the results of the use of the Software are used. Customer is also responsible for the instruction to and use by users, regardless of whether these users have a relationship of authority with Customer. In the absence of explicit agreements in this regard, the Client itself will install, set up, parameterise, tune and, if necessary, adjust the equipment, other software and user environment used, and achieve the interoperability desired by the Client.

12.5  All changes made by the Client itself must be notified in detail to Recrout in writing prior to the change. Customer will not make any changes without

the prior consent of Recrout, which consent will not be unreasonably withheld.

12.6  The Client is not permitted to have the Maintenance performed by a third party without the prior written consent of Recrout.

Article 13 Scope of Maintenance

13.1  The Maintenance and the service levels referred to in the Agreement concluded for that purpose do not apply to the repair of Errors, defects or imperfections that are the result of or related to:
a. user errors or injudicious use of the Software, including errors in Customer’s own material;
b. changes or additions to the Software other than by or on behalf of Recrout;
c. use of the Software in violation of the applicable terms or in violation of the instructions in the Documentation;
d. changes in or Errors, defects or imperfections in equipment or other software than those covered by the Maintenance;
e. using an old version of the Software that is no longer maintained by Recrout;
f. the unavailability of the Software at the Customer’s own request, and/or the unavailability of the Software during requested work;
g. in determining or isolating the problem or malfunction, requires assistance from the Customer, which Customer cannot provide for whatever reason, not fully or not according to the wishes of Recrout;
h. power failure;
i. extreme weather conditions;
j. fire;
k. physical damage to the network caused by third parties;
l. theft;
m. false, incorrect or incomplete reports;
n. other causes not attributable to Recrout, including but not limited to force majeure.

13.2  If Recrout performs Maintenance or performs other activities in connection with the provisions of Article 9.1, Recrout may charge the costs of that Maintenance or those activities in accordance with its usual rates, without prejudice to the otherwise owed by the Client for Maintenance.

13.3  Recrout is always entitled to choose not to rectify Errors and to replace the Customized and/or Standard Software with other, similar, but not necessarily identical Customized and/or Standard Software.

13.4  The provisions included in the Service Level Agreement are also not valid during calamities, at the discretion of Recrout, and predefined and agreed periods in which major changes are made to the Software.

13.5  Recrout is never obliged to restore or reconstruct lost, corrupt or mutilated data.

Article 14 Corrective Maintenance

14.1  Recruit to undertake Corrective Maintenance in accordance with the Response Times and Recovery Times as stipulated in the Agreement.

14.2  If Recrout unexpectedly wishes to perform Corrective Maintenance on the Software, it will announce this in advance as far as reasonably possible. Critical updates, at Recrout’s discretion, may be performed more quickly and without prior notice.

Article 15 Structural Maintenance

15.1  The Client can request Recrout to perform Structural Maintenance. Recrout is entitled to refuse such a request, including but not limited to the situation in which the performance of Structural Maintenance can have an (adverse) effect on the functionality of the Software; the compatibility with the Software; falls outside the scope of the Agreement and/or concerns changes or additions to the Software made by or on behalf of the Customer.

15.2  If Structural Maintenance is performed at the request of the Client, Recrout can send a quotation to the Client. If the quotation is approved by the Customer, the relevant costs will be invoiced to the Customer, accompanied by a specification of the work performed.

15.3  Recrout does not guarantee compatibility if Constructive Maintenance is performed on Custom software. Recrout is not obliged to maintain, change or add certain features or functionalities of the software specifically for the Client.

15.4  If the Customized Software proves to be incompatible after Structural Maintenance, Recrout will make reasonable efforts, based on subsequent calculation, to provide additional support. The Acceptance Procedure as referred to in Article 10 applies mutatis mutandis to Structural Maintenance on Custom Software.

15.5  Three months after an update and/or upgrade of the Software has been made available, Recrout is no longer obliged to repair any Errors in the previous version and to provide Maintenance with regard to a previous version.

15.6  Recrout may require the Client to adjust its equipment, software, IT infrastructure and the like if this is necessary for the proper functioning of a new version of the Software.

Article 16 Reporting

16.1  Recrout can inform the Client online of the hours worked, the Maintenance performed and other activities performed.

Article 17 Privacy

17.1  In the event that Recrout deems this important for the execution of the Agreement, the Client will, upon request and without delay, inform Recrout in writing about the way in which the Client fulfills its obligations under the Personal Data Protection Act and/or other applicable legislation on the field of personal data protection.

17.2  Recrout will not process any personal data, other than for the purpose of providing the Software and/or the Service, including but not limited to optimizing the operation of the Software and/or the Service and creating statistics.

17.3  Recrout will not share personal data from Customer with third parties, unless Recrout has obtained permission from Customer or is required to do so by law.

17.4  The responsibility for the personal data processed using the Software and/or the Service lies solely with the Customer. The Customer guarantees that the content, use and/or processing of the personal data is not unlawful and that it does not infringe any rights of third parties. The Client indemnifies Recrout against any legal claim from third parties, for whatever reason, in connection with this personal data.

17.5  The Client indemnifies Recrout against claims from persons whose personal data is processed by or on behalf of the Client, or for which the Client is otherwise responsible under the law, unless the Client proves that the facts underlying the claim must be attributed exclusively to Recrout. turn into.

17.6  Customer acknowledges and warrants that no persons under the age of sixteen (16) use or have access to the Software and/or the Service, unless such persons have permission from their legal representatives.

17.7  If Recrout, on the basis of the Agreement, is obliged to provide a form of security, this security will meet the written specifications as expressly agreed between the Parties. Recrout does not guarantee that the security is effective under all circumstances. If the Agreement does not contain any specifications regarding security, or if the

The agreement does not contain an explicit description of security, then it will meet a level that is not unreasonable, given the state of the art, the sensitivity of the data, and the costs associated with security. The responsibility for maintaining protection measures such as firewalls, anti-virus software and backups rests with the Customer. Recruit is not liable for this.

17.8 Read Recrout’s Privacy Policy, which governs the use of personal data on the Software and in connection with any service(s), and to which Customer agrees to be bound by these Terms and Conditions and use of the Software and service( and). The person is the controller, as defined in EU Regulation 2016/679 (“GDPR”), for all personal data processed as part of the service. Client will request Recrout to provide a data processing agreement (DPA) if such personal data is processed by Recrout. Upon such request, Recrout will provide the Client with a DPA that meets all the requirements set out in Article 28 GDPR.

 

Article 18 Confidentiality and publication

18.1  The Client shall ensure that all information received from Recrout, which it knows or should reasonably know to be of a confidential nature, remains confidential. Information is in any case confidential if it is designated as such by Recrout. The Client is aware that the software and other materials made available, including the preparatory material, may contain confidential information and trade secrets of Recrout. Subject to the prior written consent of Recrout, the Client will not make the information and data carriers available to it available to third parties outside the framework of what is permitted in the Agreement and/or make it known to its personnel and/or third parties, insofar as this is not necessary for the performance of the agreed performance. The customer will only use the confidential data for the purposes for which they were provided.

18.2  Customer will impose these confidentiality obligations on its personnel and guarantees compliance with them.

18.3  Parties:
a. will consult with each other before making any press release or other publication or advertising with regard to the Agreement;
b. will not make any press release, publication or advertising without the prior consent of the other Party, which consent will not be unreasonably withheld or delayed;
c. may, without the prior consent of the other Party, make a public statement if required to do so by law or by court order.

 

Article 19 Non-competition

19.1  Subject to written permission, the Client will refrain from employing or otherwise allowing employees of Recrout to work for it, directly or indirectly, who have been involved in the execution of the Agreement in the six (6) preceding months, or attempt to do so. to undertake. This clause lapses in the event of bankruptcy of or in the event of a suspension of payments granted to Recrout.

Article 20 Fine

20.1  In the event of a violation of Articles 18 and/or 19, Client shall promptly notify Recrout by written notice of the violation, when it was committed and any other potentially relevant information. Customer will take all reasonable measures to prevent further violations. The Client will provide Recrout with all necessary assistance to defend Recrout’s rights, including but not limited to offering Recrout the opportunity to take any (other) (legal) measures to prevent further violation.

20.2  In case of violation of article 18 or 19, Customer will forfeit an immediately due and payable fine of EUR 50,000 (in words: fifty thousand euros) per violation and EUR 5,000 (in words: five thousand euros) per day that the violation continues. Recrout, which is not eligible for any set-off. This provision is without prejudice to Recrout’s right to exercise any other statutory and/or agreed right, including but not limited to the right to claim (additional) compensation (whether or not in combination with the aforementioned fine).

 

Article 21 Liability

21.1  The liability of Recrout for damage as a result of an attributable shortcoming in the fulfillment of the Agreement, or from an unlawful act or otherwise, is excluded. Insofar as the aforementioned liability cannot be excluded, it is limited per event (a series of successive events counts as one event) to compensation for direct damage, to the amount paid out under its insurance policy conditions, if required, or in the absence of any applicable insurance for an amount of up to EUR 5000. Direct damage is exclusively understood to mean all damage consisting of:
a. damage caused directly to material objects (“property damage”);
b. reasonable costs to determine the cause and extent of the damage insofar as they relate to the direct damage as referred to here; and
c. reasonable and demonstrable costs incurred by the Customer to prevent or limit the direct damage as referred to in this article.

21.2  The liability of Recrout for indirect damage is excluded. Indirect damage is understood to mean all damage that is not direct damage and therefore in any case, but not limited to, consequential damage, loss of profit, lost savings, reduced goodwill, damage due to business interruption, damage due to failure to determine marketing objectives, damage as a result of claims by customers of the Customer, damage related to the use of data or data files prescribed by the Customer, or loss, mutilation or destruction of data or data files.

21.3  The exclusions and limitations referred to in this article lapse if and insofar as the damage is the result of intent or willful recklessness on the part of Recrout or its management.

21.4  Unless fulfillment by Recrout is permanently impossible, Recrout’s liability due to an attributable failure to perform the Agreement will only arise if the Client gives Recrout notice of default in writing without delay, setting a reasonable term for remedying the failure, and Recrout also after that term imputably continues to fail in the fulfillment of its obligations. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that Recrout is given the opportunity to respond adequately.

21.5  Any claim for compensation by the Client against Recrout that has not been specified and explicitly reported by the Client lapses by the mere lapse of twelve (12) months after the claim has arisen.

 

Article 22 Force majeure

22.1  Recrout is not obliged to fulfill any obligation if it is prevented from doing so as a result of force majeure. Force majeure includes:
a. force majeure of suppliers of Recrout;
b. failure to properly comply with supplier obligations prescribed by the Client to Recrout;
c. defects in goods, equipment, software or materials of third parties, the use of which has been prescribed to Recrout by the Client;
d. government measures;
e. power outages;
f. interference with the Internet, computer network or telecommunications facilities;
g. war;
h. workload;
i. strike;
j. general transport problems and

22.2 If the force majeure situation lasts longer than ninety (90) days, each of the Parties is entitled to dissolve the Agreement in writing.

 

Article 23 Third parties

23.1  Recrout may transfer rights and obligations arising from the Agreement to third parties and the Client hereby irrevocably agrees to such transfer now for then.

23.2  The Client is not entitled to sell and/or otherwise transfer the rights and/or obligations under the Agreement between the Client and Recrout to a third party and/or otherwise, unless expressly agreed otherwise between the parties, without the prior written consent of Recrout.

Article 24 Duration and termination

24.1  Unless expressly agreed otherwise, the Agreement is entered into for the duration of one (1) year. The duration of the Agreement is then tacitly extended for a period of one (1) year, unless the Client or Recrout terminates the Agreement in writing with due observance of a notice period of three (3) months.

24.2  If the Parties have concluded a separate Agreement for the purpose of performing Maintenance, the separate Agreement is entered into for the duration of the initial Agreement. This separate Agreement can be terminated in writing by Recrout – separate from the initial Agreement – with due observance of a notice period of three (3) months.

24.3  If the initial Agreement is terminated (prematurely) in any way, the separate Agreement that extends to the performance of Maintenance will automatically be terminated at the same time as the termination of the initial Agreement, without any legal act being required by the Parties.

24.4  Each of the Parties is entitled to dissolve the Agreement due to an attributable shortcoming in the fulfillment of the Agreement, if the other Party, after a written notice of default as detailed as possible, setting a reasonable term for remedying the shortcoming, fails imputably. in the fulfillment of essential obligations under the Agreement. The obligations of the Client as referred to in Articles 3, 4, 6, 18 and 19 always apply as essential obligations under the Agreement.

24.5  If at the time of dissolution, as referred to in the previous paragraph, the Client has already received performances for the execution of the Agreement, these performances and the associated payment obligation will not be subject to cancellation. Amounts invoiced by Recrout before the dissolution remain due in full and become immediately due and payable at the time of the dissolution.

24.6  Recrout is entitled to terminate in whole or in part, without a notice of default being required, if the Client is granted a moratorium, whether or not provisionally, if the Client is filed for bankruptcy, if the Client’s company is liquidated or terminated. , other than for the purpose of reconstruction or amalgamation of companies, or if the decisive control over the Client’s company changes.

24.7  Recrout will never be obliged to refund monies already received or to pay any compensation due to cancellation, dissolution or any other method of termination of the Agreement. The Customer’s right to use and access the Software and/or the right to Maintenance lapses by operation of law in the event of cancellation, dissolution or other manner of termination of the Agreement. In such case, Customer will return all copies of the Software in its possession to Recrout.

24.8  If the Client does not, not fully or not in time, fulfill its obligations under the Agreement, more in particular in the event of non-compliance with the provisions of Articles 3, 4, 6, 18 or 19 of the General Terms and Conditions, Recrout is entitled, without any demand or notice of default is required, to suspend the execution of the Agreement in whole or in part. Recrout also reserves its right to retain data, data files and/or results of the Software, despite any existing obligation to issue or transfer, until Customer fulfills its obligations. This provision is without prejudice to Recrout’s right to exercise any other statutory and/or agreed right.

24.9  The provisions that are intended to continue to apply after cancellation, dissolution or other manner of termination of the Agreement, including but not limited to articles 2.4, 4.11, 6, 17, 18, 19, 21, 24 and 25 of the General Terms and Conditions, will survive the cancellation, dissolution or other method of termination of the Agreement.

Article 25 Applicable law and jurisdiction

25.1  The Agreement, the General Terms and Conditions, the use of the Software and the provision of Services are governed by Dutch law. The applicability of the Vienna Sales Convention is excluded.

25.2  All disputes that may arise between Recrout and the Client will be submitted for mediation. If the dispute cannot be resolved through mediation, the dispute will be submitted to the competent court in the district of Amsterdam.