General Terms Recrout LTD
General Terms Recrout 2023
Article 1 Definitions
1.1 In these General Conditions and the Agreement, the following terms, both singular and plural and always written with a capital letter, shall have the following meanings:
(a) Acceptance Procedure: the acceptance procedure as defined in Article 10;
b) General Terms and Conditions: these general terms and conditions of Recrout;
c) Constructive Maintenance: the Service concerning the performance of maintenance by Recrout consisting of launching upgrades (new releases) and/or updates to the Standard Software;
d) Corrective Maintenance: the Service relating to the performance of maintenance by Recrout in response to Errors arising;
e) Service: the service provided by Recrout to the Customer, as described in the Agreement;
f) Documentation: the user and technical documentation belonging to the Custom Software and/or the Standard Software;
g) Duration: the duration of the Agreement, as defined in Article 23;
h) Errors: the substantial non-compliance with the functional specifications expressly agreed upon in writing between the Parties. There is only an Error if Customer can demonstrate it and if it is reproducible;
i) Recovery Time: the time between (1) the time at which Recrout has detected an Error or the Customer has reported an Error and (2) the time at which the Error has been resolved, (the Error in) the Software has been replaced, or a workaround has been created, as determined by Recrout;
(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;
k) Customer: the party with whom Recrout has entered into the Agreement;
l) Custom Software: the custom software developed specifically for the Customer based on the Standard Software, including the associated Documentation, look-and-feel, interfaces, layout and other items as further described in the Agreement;
(m) Materials: materials such as, but not limited to, analyses, designs, documentation, reports and quotations;
n) Additional Work: the work or other performance performed or to be performed by Recrout, which is outside the content and/or scope of the agreed work and/or performance and/or involves changes to it;
o) Recrout: the private limited company Recrout
B.V., having its registered office at Opaallaan 1180, 2132 LN Hoofddorp under the Dutch chamber of commerce registration number: 63509008
(p) Maintenance: the Service that Recrout may provide to the Customer under a separate Agreement for that purpose, consisting of Corrective Maintenance and
q) Agreement: the Agreement between the Customer and Recrout;
r) Parties: the Customer and Recrout;
(s) Response Time: the time between (i) the time at which Customer has made a notification of an Error and (ii) the time at which Recrout begins remedying the Error, as determined by Recrout;
(t) Software: the Standard Software and any Custom Software;
(u) Standard Software: Recrout’s Standard Software, including the associated Documentation, look-and-feel, interfaces, layout and other items, as further described in the Agreement;
(v) Working Day: from 9:00 a.m. to 6:00 p.m. on Monday through Friday, with the exception of Dutch recognized and official holidays.
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 made by Recrout.
2.2 Deviations and additions to the General Terms and Conditions and/or Agreement are only valid if they have been agreed in writing between the Parties.
2.3 If any provision of the General Terms and Conditions appears to be in conflict with provisions of the Agreement, the relevant provision of the Agreement shall prevail.
2.4 Any purchasing or other terms and conditions of the Customer are expressly rejected by Recrout.
2.5 Should any provision of the Terms and Conditions be void or nullified, the other provisions of the Terms and Conditions shall remain in full force and effect. Recrout will replace the void or annulled provisions with new provisions, taking into account as much as possible the purpose and meaning of the void or annulled provision.
2.6 If any provision of the Agreement is null and void or annulled, the parties will in such case consult to agree on new provisions to replace the null and void or annulled provisions, taking into account as much as possible the purpose and meaning of the null and void or annulled provision.
2.7 Recrout’s data is leading, subject to evidence to the contrary from the Customer.
Article 3 Obligations of Customer and performance of work
3.1 The Customer acknowledges that the success of the work under the Agreement, including but not limited to making the Software available and/or providing Services, as included in the Agreement, depends on correct and timely mutual cooperation. In order to enable Recrout to properly perform the Agreement, the Customer shall at all times provide Recrout with all data and/or information deemed useful, necessary and desirable by Recrout in a timely manner, and provide all cooperation. Recrout shall endeavor to provide the Software and/or Services with due care and skill.
3.2 If the Customer deploys its own personnel and/or auxiliary persons as part of providing cooperation in the performance of the Agreement, these personnel and these auxiliary persons will have the necessary knowledge, expertise and experience.
3.3 If it has been agreed that the Customer shall make equipment, software, Materials or data on data carriers available to Recrout, these shall comply with the specifications necessary for the performance of the work. The Customer guarantees that no third party rights oppose the provision or use of such equipment, software, Materials or data and shall indemnify Recrout against any action based on the allegation that such provision or use infringes any third party right.
3.4 If the Customer fails to make available to Recrout any data, documents, equipment, software, materials or employees that Recrout deems useful, necessary or desirable for the performance of the Agreement, or fails to do so in a timely manner or in accordance with Recrout’s wishes, Recrout shall be entitled to suspend performance of the Agreement in whole or in part, and Recrout shall also be entitled to charge Recrout for any costs incurred as a result in accordance with Recrout’s customary rates, all this without prejudice to Recrout’s right to exercise any other statutory and/or agreed right.
3.5 The Client is responsible for the correct choice of computer, data or telecommunication facilities, including the Internet, and for the timely and full availability thereof.
3.6 The Customer shall indemnify Recrout and its suppliers against any claims, proceedings, losses and/or damages suffered directly and/or indirectly by third parties based on or arising from (i) the allegation that any activity of the Customer is in any way unlawful, including but not limited to activities in breach of these General Terms and Conditions, the Agreement and/or constituting an infringement of Intellectual Property Rights; and/or (ii) the Customer’s unlawful and/or improper performance of the Agreement, more specifically the obligations under this article.
4.1 The Customer shall pay 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 that it could reasonably expect to be an obvious error or clerical error.
4.3 All prices are exclusive of sales tax (VAT) and other government levies.
4.4 All prices are in euros. The Client shall make all payments to Recrout in euros.
4.5 All pre-calculations and budgets issued by Recrout are indicative only, unless Recrout has expressly stated otherwise in writing. An available budget made known to Recrout by the Customer shall never count as a (fixed) price agreed between the Parties for the performance to be carried out by Recrout. Recrout is only obliged to inform the Customer in the event of an impending overrun of a pre-calculation or budget if this has been expressly agreed between the Parties in writing.
4.6 With regard to the amounts paid and/or owed by the Customer, the relevant documents and data from Recrout’s administration shall constitute full evidence, without prejudice to the Customer’s right to provide evidence to the contrary.
4.7 The prices in the Agreement may, without prior notice, be changed by Recrout. If the Parties have agreed on a periodic payment obligation, Recrout shall be entitled to adjust the prices and rates in writing at three (3) months’ notice. If Customer does not agree with this price change, it shall be entitled to terminate the Agreement in writing within thirty (30) days of notification of the change, by the date on which the change would take effect. Customer shall not be entitled to such right of termination in the event that the Parties have agreed that the prices and/or rates will be adjusted taking into account an index or other measure agreed between the Parties.
4.8 All invoices shall be paid by Customer in accordance with the payment terms stated in the Agreement and/or on the invoice. In the absence of specific conditions, Customer shall pay within thirty (30) days of the invoice date.
4.9 Customer is not entitled to set off or suspend any payment or amounts due, on any account whatsoever.
4.10 If Customer fails to pay the amounts due within the agreed period, Customer shall, without any notice of default being required, owe the statutory commercial interest as referred to in Article 6:119a of the Dutch Civil Code over the outstanding amount. If the Client continues to fail to pay the claim after a reminder or notice of default, Recrout may pass on the claim for collection, in which case the Client shall, in addition to the total amount then due, also be obliged to pay all extrajudicial and judicial costs in full, including all costs of lawyers and external experts.
4.11 If the Client’s creditworthiness gives reason to do so, Recrout may require further security, failing which it may suspend performance of the Agreement. The Customer guarantees the accuracy and completeness of the information provided by or on behalf of the Customer to Recrout, on which Recrout bases its offer. The Customer shall always exercise the utmost care to ensure that the requirements to be met by Recrout’s Service and/or the Software are correct and complete. Data in images, catalogs, websites, quotations, advertising material and the like are not binding for Recrout.
Article 5 Additional Work
5.1 If Recrout performs Additional Work at the request or with the prior consent of the Customer, the Customer shall pay for such Additional Work in accordance with Recrout’s usual rates. Recrout is not obliged to comply with a request by the Client to perform Additional Work and may require that a separate, written agreement be concluded for this purpose.
5.2 The Customer accepts that Additional Work may affect and/or alter the agreed and/or expected time for delivery of the Software, the mutual responsibilities of the Customer and Recrout and any pre-agreed fixed price. The fact that (the demand for) Additional Work arises during the execution of the Agreement shall not be a ground for cancellation or dissolution of the Agreement by the Customer.
5.3 Purchase of new software, licenses, equipment and the like and repairs at third parties fall outside the standard rates and will be charged separately, possibly directly by this third party, to Customer.
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, are vested exclusively in Recrout. The Customer shall only acquire the rights of use granted to it by Agreement, all this unless explicitly agreed otherwise in a written document signed by Recrout and the Customer.
6.2 The parties may agree that Recrout will make the Software and accompanying Documentation available to the Customer for use.
6.3 Unless otherwise agreed in writing, Recrout’s obligation to make available and the Customer’s right of use shall extend only to the so-called object code of the Software. The 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 other than the agreed Software or program or data libraries, even if these are required for the use and/or maintenance of the Software. If, contrary to the aforementioned, Recrout is also required to make available Software and/or program or data libraries other than those agreed, Recrout may require the Customer to enter into a separate written agreement for that purpose.
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 to use the Software – there is no question of selling (rights to) the Software.
6.6 The Customer shall at all times strictly comply with the restrictions in the right to use the Software agreed between the Parties. Customer is aware that violation of an agreed restriction on use constitutes both an attributable failure to perform 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 business or organization and only for its intended use.
6.8 Unless otherwise agreed in writing, the Customer shall not perform any acts that may infringe Recrout’s Intellectual Property Rights, including but not limited to disclosing and/or reproducing the Software without permission, licensing or selling the Software to third parties and registering domain names, trademarks or Google AdWords search terms
(keywords) that are similar or identical to any sign to which Recrout may assert Intellectual Property Rights.
6.9 The Customer is expressly prohibited from downloading, copying, modifying, making public, or in any other way making available, using for direct or indirect commercial purposes, or using (parts of) the Software, information and files, data, programs and/or Materials for any purpose other than the purposes specified in the Agreement, unless Recrout or the relevant rights holder has given permission for this, or mandatory legal rules provide otherwise.
6.10 The Customer is expressly not permitted to modify the Software in whole or in part without Recrout’s prior consent. Recrout is always entitled to refuse permission or to attach conditions to its permission – including conditions regarding the manner and quality of execution of the modifications desired by the Customer. The Customer shall bear the full risk of all modifications made by or on behalf of the Customer by third parties – with or without Recrout’s consent.
6.11 The Customer acknowledges and accepts that any unauthorized use of the Software, Documentation, software, websites, data files or Materials subject to Recrout’s Intellectual Property Rights infringes the General Terms and Conditions and applicable legislation.
6.12 Recrout is permitted 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 Customer is not permitted to remove or circumvent this security (or have it removed) or to circumvent it (or have it circumvented).
6.13 Except in the event that Recrout makes a back-up copy of the Software, software, data files or websites available to the Customer, the Customer shall be entitled to make at most one back-up copy thereof. In these General Terms and Conditions, back-up copy means a material object on which the Software, software, data files or websites are recorded, solely for the purpose of replacing 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 shall never be obliged to provide the Customer with (a physical carrier containing) the Software in source code or other software used in development of the Software (whether in source code form or not) or preparatory material.
6.15 Recrout may make software from third parties available to the Customer. The (license) terms and conditions of those third parties may apply thereto, to the exclusion of any provisions deviating therefrom in the General Terms and Conditions and Agreement. Customer warrants that it accepts and will strictly comply with these third party terms and conditions. If and to the extent that the aforementioned terms and conditions of third parties in the relationship between the Customer and Recrout are deemed inapplicable or declared inapplicable for whatever reason, the provisions of the General Terms and Conditions shall apply in full.
6.16 The Customer guarantees that third party rights do not oppose 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, processing, installation or incorporation in the Software and/or Documentation. The Customer shall indemnify Recrout against any claim by a third party based on the allegation that such provision, use, adaptation, installation or incorporation infringes any right of that third party, including Intellectual Property Rights.
6.17 Recrout reserves the right to check (or have a third party check) whether the Customer is using the Software, Documentation, software, websites, data files or Materials as well as (other) preparatory material thereof in accordance with the rights granted. Upon request, the Customer shall immediately cooperate fully with any investigation to be conducted by or on behalf of Recrout regarding the Customer’s compliance with the agreed restrictions on use. The Customer shall at Recrout’s first request grant access to its premises and systems to Recrout or a third party engaged by Recrout.
Article 7 Delivery, installation
7.1 If delivery has been agreed, Recrout shall deliver the Software to the Customer on the agreed format of information carriers or, in the absence of clear agreements to that effect, format of information carriers to be determined by Recrout, or deliver to the Customer using telecommunication facilities (online). Recrout shall determine the method of delivery.
7.2 Only if agreed in writing between the Parties will Recrout install the Software at the Customer’s premises. In the absence of explicit agreements in this regard, the Client shall install, organise, parameterise, tune and, if necessary, adapt the equipment, hardware and user environment used. Unless otherwise agreed in writing, Recrout is not obliged to perform data conversion.
7.3 Recrout shall decide on the form, content and language in which the Documentation is provided.
7.4 The risk of loss, theft or damage of items, products, software or data that are the subject of the Agreement shall pass to the Customer at the time they are placed in the actual control of the Customer or an auxiliary person of the Customer.
7.5 The Customer shall take good care of any equipment and/or materials made available to the Customer by Recrout.
Article 8 Terms
8.1 All (delivery) terms stated by Recrout have been established to the best of Recrout’s knowledge based on the information known to Recrout at the time the Agreement was entered into and they will be observed to the extent possible. (Delivery) terms stated by Recrout and/or agreed between the Parties are only target dates, which are not binding on Recrout. These terms are indicative only. Recrout will make reasonable efforts to comply with fatal (delivery) terms and fatal (completion) dates as much as possible. Recrout is not bound to any (delivery) term or (completion) date, whether or not fatal, that can no longer be met due to force majeure. Neither is Recrout bound by a (delivery) term or (completion) date, whether or not fatal, if the Parties have agreed on Additional Work or a change of approach to the execution of the Agreement.
8.2 The mere exceeding of a (delivery) term or (delivery) date stated by Recrout or agreed between the Parties, whether or not fatal, shall not cause Recrout to be in default. In all cases, Recrout shall not be in default due to time overrun until the Customer has given it written notice of default. The notice of default must contain as complete and detailed a description of the shortcoming as possible, as well as a reasonable term to remedy the shortcoming.
Article 9 Custom Software
9.1 The parties may agree that Recrout will develop Custom Software for the Customer. In such a case, Recrout will develop the Custom Software based on the specifications agreed between the parties, as described in the Agreement. Upon signing the Agreement, the Client agrees to these specifications, declaring that the specifications are complete, consistent and in accordance with its requirements and wishes.
9.2 In order to test whether the Custom Software meets the agreed specifications, the Parties shall go through the Acceptance Procedure after delivery of the Custom Software.
Article 10 Acceptance procedure
10.1 Within fourteen (14) calendar days after delivery of the Custom Software, Client shall test the Custom Software for acceptance. Client shall perform the Acceptance Procedure with sufficiently qualified personnel and with sufficient scope and depth on the Custom Software.
10.2 The Client shall be obliged during the Acceptance Procedure to test under its full and sole responsibility whether the delivered Custom Software meets the agreed specifications. Any assistance provided by Recrout in carrying out the Acceptance Procedure is entirely at the Client’s risk.
10.3 If during the performance of the Acceptance Test it becomes apparent that the Custom Software contains Errors, the Client shall inform Recrout of this in a written, comprehensible and clear manner by means of a test report, no later than on the last day of the Acceptance Procedure as referred to in article 10.1. Recrout shall endeavor to the best of its ability to remedy said Errors within a reasonable period of time, whereby Recrout shall be entitled to apply temporary solutions, program bypasses or problem-avoiding restrictions to the Custom Software. The Acceptance Procedure will be repeated in accordance with this article until the Custom Software is accepted.
10.4 The Custom Software shall be deemed accepted between the Parties:
a. on the first day after the test period as mentioned in article 10.1; or
b. from the moment the Client uses the Custom Software for productive or operational purposes, which use is expressly at the expense and risk of the Client;
c. if, before the end of the test period as referred to in article 10.1, Recrout receives a test report as referred to in article 10.3:
(1) if, in Recrout’s opinion, the test report contains no Errors, without prejudice to the presence of imperfections that do not prevent acceptance under Article 10.5, from the date of the test report;
(2) at the moment when the Errors mentioned in the test report have been remedied, without prejudice to the presence of imperfections that do not prevent acceptance under Article 10.5.
10.5 Acceptance of the Custom Software may not be withheld on grounds not related to the agreed specifications and furthermore not on account of the existence of minor Errors, being Errors that do not reasonably prevent the operational or productive commissioning of the Custom Software. Acceptance may furthermore 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 and feel and layout of the user interfaces.
10.6 Acceptance of the Custom software in one of the ways referred to in this article shall result in Recrout being discharged of its obligations in respect of the provision and delivery of the Custom software.
Article 11 Warranties
11.1 The Customer accepts that the Software contains only the functionality and other features as the Customer finds 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 the actual and/or intended use by the Customer. Nor does Recrout warrant that the Software will operate without Errors or that all Errors will always be corrected.
11.3 Recrout will endeavor to the best of its ability to correct Errors in the Software within a reasonable period of time if these are reported to Recrout in writing within a period of three (3) months after acceptance as referred to in article 10 in detail. Recrout may charge its usual rates for repair of Errors, if the Errors are due to user errors or improper use by the Customer or other causes not attributable to Recrout, or if the Errors could have been discovered when performing the Acceptance procedure.
11.4 The aforementioned obligation to repair shall lapse if the Customer makes or causes to be made any changes to the Software without Recrout’s prior written consent.
11.5 Repair of Errors shall take place at a location to be determined by Recrout. Recrout shall always be entitled to install temporary solutions or program bypasses or problem avoiding restrictions in the Software.
11.6 Recrout shall not be obliged to repair Errors reported after the expiry of the warranty period referred to in article 11.3, unless a separate Agreement for the purposes of Maintenance has been concluded between the Parties which includes such a duty to repair.
Article 12 Maintenance.
12.1 Recrout shall endeavour to carry out Maintenance in accordance with the agreements and procedures laid down in writing with the Customer, if such has been agreed between the Parties.
12.2 If the Maintenance relates to software not supplied to the Customer by Recrout itself, the Customer shall, if Recrout deems this useful, necessary or desirable for the Maintenance, make available the source code and the technical (development) documentation of the software (including data models, designs, change logs and the like). The Customer warrants that it is entitled to such provision and that no third party rights oppose it. The Customer grants Recrout the right to use and modify the software, including the source code and technical (development) documentation, in the context of carrying out the Maintenance. The Customer shall indemnify Recrout against all third party claims relating to the provision and use made by Recrout in the context of the Maintenance of the software made available.
12.3 For the purposes of carrying out Maintenance, the Customer undertakes to make the systems on which the Software is installed available at an accessible location with the necessary workspace, all in accordance with any instructions issued by Recrout. The Customer also undertakes to make available to Recrout all systems linked and connected to the system, test procedures and information carriers thereof in connection with testing the functioning thereof. Insofar as the performance of Maintenance will take place online, the Customer shall ensure proper infrastructure and telecommunication facilities in a timely manner. Recrout is entitled to suspend or limit the performance of its work if the Customer’s infrastructure and telecommunication facilities do not meet the requirements set by Recrout.
12.4 Maintenance by Recrout does not affect the Customer’s own responsibility for the management of the Software, including control of settings, use of the Software, creation of users, maintenance of equipment and hardware, and the manner in which the results of use of the Software are deployed. Customer is also responsible for instruction to and use by users, regardless of whether these users are in a relationship of authority to Customer. In the absence of explicit agreements in this regard, the Customer shall install, set up, parameterize and tune the (auxiliary) software itself and, if necessary, adapt the hardware, other software and user environment used for this and achieve the interoperability required by the Customer.
12.5 All changes carried out by the Customer itself must be reported to Recrout in detail in writing prior to the change. The Customer shall not make any changes without the prior consent of Recrout, which consent shall not be refused on unreasonable grounds.
12.6 The Customer is not permitted to have the Maintenance carried out by a third party without Recrout’s prior written consent.
Article 13 Scope of Maintenance
13.1 The Maintenance and the service levels specified in the Agreement concluded for this purpose do not apply to the repair of Errors, defects or imperfections resulting from or relating to:
a. errors in use or injudicious use of the Software, which includes errors in Customer’s own material;
b. modification of or additions to the Software other than by or on behalf of Recrout;
c. use of the Software contrary to the terms and conditions applicable thereto or contrary to the instructions contained in the Documentation;
d. changes in or Errors, defects or imperfections in equipment or software other than that covered by the Maintenance;
e. the use of an old version of the Software that is no longer maintained by Recrout;
f. non-availability of the Software at the Customer’s own request, and/or non-availability of the Software during requested work;
g. in determining or isolating the problem or malfunction, requires assistance from the Customer, which for any reason the Customer is unable to provide, or is unable to provide fully or to the satisfaction of Recrout;
h. power failure;
i. extreme weather conditions;
k. physical damage to the network caused by third parties;
m. false, incorrect or incomplete reports;
n. other causes not attributable to Recrout, including but not limited to force majeure.
13.2 If Recrout carries out Maintenance or performs other work in connection with the provisions of article 9.1, Recrout may charge the costs of such Maintenance or work in accordance with its usual rates, which shall not affect the other amounts owed by the Customer on account of Maintenance.
13.3 Recrout shall always be entitled to choose not to repair Errors and to replace the Custom and/or Standard Software with other, similar, but not necessarily identical Custom and/or Standard Software.
13.4 The provisions contained in the Service Level Agreement are also not valid during calamities, at Recrout’s discretion, and predefined and agreed periods during which major changes are made to the Software.
13.5 Recrout shall never be obliged to restore or reconstruct lost, corrupted or mutilated data.
Article 14 Corrective Maintenance.
14.1 Recrout shall make every effort to perform Corrective Maintenance in accordance with the Response Times and Repair Times as stipulated in the Agreement.
14.2 If Recrout wishes to carry out unexpected Corrective Maintenance on the Software, it will, as far as reasonably possible, announce this in advance. Critical updates, at Recrout’s discretion, may be performed sooner and without prior notice.
Article 15 Constructive Maintenance.
15.1 The Customer may request Recrout to perform Constructive Maintenance. Recrout is entitled to refuse such a request, including but not limited to the situation where the performance of Constructive Maintenance may have a (detrimental) effect on the functionality of the Software; compatibility with the Software; falls outside the scope of the Agreement; and/or involves changes or additions to the Software made by or on behalf of the Customer.
15.2 If Constructive Maintenance is performed at the Customer’s request, Recrout may send a quotation to the Customer for that purpose. If the quotation is approved by the Customer, the relevant costs will be invoiced to the Customer, along with a specification of the work performed.
15.3 Recrout does not guarantee compability if Constructive Maintenance is performed on Custom Software. Recrout is not obliged to maintain, modify or add features or functionalities of the software specifically for the Client.
15.4 Should the Custom Software prove incompatible after Constructive Maintenance, Recrout will make reasonable efforts, on an after-the-fact basis, to provide additional support. The Acceptance Procedure as mentioned in Article 10 shall apply accordingly to Constructive Maintenance on Custom Software.
15.5 Three months after making an update and/or upgrade of the Software available, Recrout is no longer obliged to fix any Errors in the previous version and to provide Maintenance with respect to a previous version.
15.6 Recrout may require the Customer to modify its equipment, software, IT infrastructure and the like if necessary for the proper functioning of a new version of the Software.
Article 16 Reporting
16.1 Recrout may notify the Customer online of the hours incurred, Maintenance carried out and other work performed.
Article 17 Privacy
17.1 In the event that Recrout considers this to be of importance for the performance of the Agreement, the Customer shall, upon request and without delay, inform Recrout in writing of the manner in which the Customer complies with its obligations under the Personal Data Protection Act, and/or other applicable legislation in the field of personal data protection.
17.2 Recrout will not process 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 any personal data originating from the Customer with third parties, unless Recrout has obtained permission to do so from the Customer or is required to do so by law.
17.4 Responsibility for 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 does not infringe any third party rights. The Customer shall indemnify Recrout against any legal action by third parties, on any grounds whatsoever, in connection with such personal data.
17.5 The Customer shall indemnify Recrout against claims by persons whose personal data are processed by or on behalf of the Customer, or for whom the Customer is otherwise responsible by law, unless the Customer proves that the facts underlying the claim are solely attributable to Recrout.
17.6 The Customer acknowledges and warrants that no persons under sixteen (16) years of age shall use or have access to the Software and/or the Service unless such persons have permission from their legal representatives.
17.7 If Recrout, pursuant to the Agreement, is required to provide some form of security, such security shall conform to the written specifications as expressly agreed between the Parties. Recrout does not guarantee that the security will be effective under all circumstances. If the Agreement contains no specifications regarding security, or if 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 protective measures such as firewalls, anti-virus software and backups lies with the Customer. Recrout is not liable for this.
Article 18 Confidentiality and publication
18.1 The Customer shall ensure that all information received from Recrout, which it knows or should reasonably know is of a confidential nature, shall remain confidential. Data are in any case confidential if they have been designated as such by Recrout. The Customer is aware that the software and other materials made available, including preparatory materials, may contain confidential information and trade secrets of Recrout. Subject to Recrout’s prior written consent, the Customer shall not make the information and data carriers at its disposal available to third parties outside the scope of what is permitted in the Agreement and/or disclose them to its personnel and/or third parties, insofar as this is not necessary for the performance of the agreed services. Customer shall use the confidential data only 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 The parties:
a. will consult with each other before making any press release or other publication or advertisement regarding the Agreement;
b. shall not make any press release, publication or advertisement without the prior consent of the other Party, which consent shall not be unreasonably withheld or delayed;
c. may, without the prior consent of the other Party, make a public expression if required to do so by law or court order.
Article 19 Non-Competition
19.1 Subject to written consent, the Customer shall refrain from employing or otherwise having employees of Recrout, who have been involved in the performance of the Agreement in the preceding six (6) months, directly or indirectly work for it, nor attempt to do so. This clause shall lapse in the event that Recrout is declared bankrupt or is granted a moratorium.
Article 20 Penalty
20.1 In the event of breach of Articles 18 and/or 19, Customer shall promptly notify Recrout by written notice of what the breach consists of, when it was committed and any other potentially relevant information. Customer will take all reasonable steps to prevent further violations. Customer will provide Recrout with all necessary assistance to defend Recrout’s rights, including but not limited to giving Recrout the opportunity to take any (other) (legal) measures to prevent further breach.
20.2 In the event of a breach of article 18 or 19, the Customer shall forfeit to Recrout an immediately due and payable penalty of EUR 50,000 (in words: fifty thousand euros) per breach and EUR 5,000 (in words: five thousand euros) per day that the breach continues, 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) damages (whether or not in combination with the aforementioned penalty).
Article 21 Liability
21.1 Recrout’s liability for damages as a result of an attributable failure in the performance of the Agreement, or in tort or otherwise, is excluded. Insofar as the aforementioned liability cannot be excluded, it shall be limited per event (a series of consecutive events counts as one event) to compensation for direct damage, up to the amount paid out under its insurance policy terms and conditions, if required, or in the absence of any applicable insurance for an amount not exceeding EUR 5000. Direct damage means exclusively all damage consisting of:
a. damage directly caused to tangible property (“property damage”);
b. reasonable costs to determine the cause and extent of the damage insofar as pertaining to direct damage as referred to herein; and
c. reasonable and demonstrable costs incurred by the Client to prevent or limit the direct damage as referred to herein.
21.2 Recrout’s liability 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, missed savings, reduced goodwill, damage due to business stagnation, damage as a result of the failure to determine marketing objectives, damage as a result of claims by the Customer’s customers, 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 shall lapse if and insofar as the damage is the result of intent or conscious recklessness on the part of Recrout or its management.
21.4 Unless performance by Recrout is permanently impossible, Recrout’s liability due to attributable failure to comply with the Agreement shall only arise if the Customer gives Recrout immediate notice of default in writing, whereby a reasonable term for remedying the failure is set, and Recrout continues to fail imputably in the fulfilment of its obligations even after that term. The notice of default must contain as complete and detailed a description of the failure as possible, in order to give Recrout the opportunity to respond adequately.
21.5 Any claim for damages by the Customer against Recrout that has not been specified and explicitly reported by the Customer shall lapse by the mere lapse of twelve (12) months after the claim arises.
Article 22 Force majeure
22.1 Recrout shall not be obliged to comply with any obligation if prevented from doing so as a result of force majeure. Force majeure shall include:
a. force majeure of Recrout’s suppliers;
b. failure to properly fulfill obligations of suppliers prescribed to Recrout by the Customer;
c. defectiveness of items, equipment, software or materials of third parties whose use has been prescribed to Recrout by the Customer;
d. government measures;
e. electricity failures;
f. failure of internet, computer network or telecommunication facilities;
j. general transport problems; and
22.2 If the force majeure situation lasts longer than ninety (90) days, each of the Parties shall be entitled to terminate the Agreement in writing.
Article 23 Third Parties
23.1 Recrout may assign rights and obligations under the Agreement to third parties and the Customer hereby irrevocably consents to such assignment, now for then.
23.2 The Customer shall not be entitled to sell and/or otherwise transfer the rights and/or obligations under the Agreement between the Customer and Recrout to a third party without Recrout’s prior written consent unless otherwise expressly agreed between the parties.
Article 24 Duration and termination
24.1 Unless expressly agreed otherwise, the Agreement is entered into for a term of one (1) year. The duration of the Agreement shall thereafter always be tacitly extended by a period of one (1) year, unless the Customer or Recrout terminates the Agreement in writing with due observance of a notice period of three (3) months.
24.2 If the Parties have entered into a separate Agreement for the purpose of performing Maintenance, the separate Agreement shall be entered into for the duration of the initial Agreement. This separate Agreement may be terminated by Recrout – separately from the Initial Agreement – in writing subject to three (3) months’ notice.
24.3 If the Initial Agreement is terminated (prematurely) in any manner, the separate Agreement for the provision of Maintenance shall automatically terminate at the same time as the termination of the Initial Agreement, without any further legal action by the Parties being required.
24.4 Each of the Parties shall be entitled to rescind the Agreement on account of an attributable breach of contract if the other Party, after a written notice of default that is as detailed as possible and in which a reasonable period is given to remedy the breach, fails attributably in the fulfilment of essential obligations under the Agreement. The obligations of Customer as mentioned 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 Customer has already received performance in execution of the Agreement, such performance and the related payment obligation shall not be subject to cancellation. Amounts invoiced by Recrout prior to the dissolution shall remain due in full and shall become immediately payable at the time of dissolution.
24.6 Recrout shall be entitled to terminate in whole or in part, without notice of default being required, if the Client is granted suspension of payment – provisional or otherwise -, if the Client’s bankruptcy is filed for, if the Client’s business is liquidated or terminated, other than for the purpose of reconstruction or amalgamation of companies, or if the decisive control over the Client’s business changes.
24.7 Recrout shall never be liable to refund any monies already received or to pay any compensation due to cancellation, dissolution or other 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 termination of the Agreement. The Customer shall in such case return all copies of the Software in its possession to Recrout.
24.8 If the Customer does not, does not fully or does not timely comply with its obligations under the Agreement, more specifically in the event of non-compliance with the provisions of articles 3, 4, 6, 18 or 19 of the General Terms and Conditions, Recrout shall be entitled, without any demand or notice of default being required, to suspend performance of the Agreement in whole or in part. Recrout also reserves its right to hold data, data files and/or results of the Software in its custody, notwithstanding any existing obligation to surrender or transfer, until the Customer complies with its obligations. This provision is without prejudice to Recrout’s right to exercise any other legal and/or agreed right.
24.9 The provisions intended to survive termination, 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, shall survive termination, dissolution or other manner of termination of the Agreement.
Article 25 Applicable law and jurisdiction
25.1 The Agreement, the General 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 Any disputes that may arise between Recrout and the Customer will be submitted for mediation. In the event the dispute cannot be resolved through mediation, the dispute will be submitted to the competent court in the district of Amsterdam.