These terms of service govern the relationship between the Supplier (as identified below) and anyone who downloads, saves, installs, uses, accesses, interfaces with, or otherwise causes themselves to be exposed to the Service or any part of the Service described herein or any software, information or other item provided through or forming a part of the Supplier's website, usually a “User” and/or a “Participant” (as identified below). Each of the acts mentioned in the preceding sentence shall be deemed to signify that the respective person agrees with these terms. If you are reading this text, there is a good chance that you may be about to become, or perhaps already are, a User or a Participant. So please do consider these terms carefully as they are likely to affect your rights and obligations.
If you wish to enjoy the Service as a consumer, i.e., a natural person (an individual) acting for purposes outside his or her trade, business, craft, or profession, then please pay particular attention to section 6.9 and 17.5. You are also advised that, before proceeding to create an account, you should study the documentation pertaining to the Service (links to which are provided below under the definition of "Documentation") and consider carefully whether the Service is likely to meet your requirements, for a consumer's right to withdraw from this contract and the right to withdraw from subscriptions are excluded under section 4.6.
You should bear in mind that, even though certain subscriptions may be available free of charge, the more feature-rich Service Plans are always paid. This means that placing an order for a Service Plan often entails an obligation to pay. Please consult the Documentation prior to ordering anything and, when you do place an order, pay attention to the information displayed upon each step of the procedure to be certain that what you are ordering is indeed what you desire and that the terms presented are acceptable.
If you are not of legal age (which is likely to be the case if you are under 18) or otherwise do not possess full active legal capacity, then the Service is not for you (see section 6.2).
If you are associated with a patent assertion entity (also known as a patent troll), please see section 6.10.
If you are entering into this Agreement on behalf of a company, organization or another legal entity, you are agreeing to this Agreement for that entity and representing to Supplier that you have the authority to bind such entity and its affiliates to this Agreement, in which case the term “Customer” or a related capitalized term herein shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with this Agreement, you must not use or authorize any use of the Services.
Should you find anything in these Terms that you do not agree with, please do not use any of the Features, close your User Account and/or Participant Account and remove all Software and other items forming part of the Service from your systems, devices, storage media and repositories.
1.1. The following terms, when capitalised, shall have the meanings assigned to them below:
1.2. The words "herein", "hereto", "hereof", "hereunder", "hereby" and "herewith" refer to this Agreement, and words denoting a gender or genders are to be construed as referring to all genders appropriate in the context.
1.3. This Agreement constitutes the entire agreement between the Parties relating to the subject matter hereof, superseding all prior agreements and understandings of the Parties concerning that matter. If any provision herein conflicts with any Software- or Service-related information provided elsewhere, the provision in the Agreement shall control.
2.1. The Agreement shall be effective: (a) between the Supplier and the Customer and/or the User as of the moment when the party to be identified as the Customer and/or the User downloads, saves or installs any part of the Software, obtains a User Account or agrees or is deemed to have agreed to the Terms, whichever occurs first; (b) between the Supplier and the Participant as of the moment when the party to be identified as the Participant downloads, saves or installs any part of the Software, obtains a Participant Account or agrees or is deemed to have agreed to the Terms, whichever occurs first.
2.2. Each Participant, Customer, User, and anyone else who causes himself to be exposed to the Service or any part thereof is deemed to have agreed to the Terms every time he subjects himself to a Feature or performs any of the acts mentioned in the opening paragraph of these Terms.
2.3. A separate contract is always formed between the Supplier and each User. No User is party to, or a third-party beneficiary or a protected or otherwise interested third party under, another User's contract with the Supplier, or can raise any claim based on or in connection with that contract.
2.4. The Supplier's undertakings with regard to the Service are to the Customer only and no one else may demand, or shall rely on, the Supplier's performance of its respective obligations (or any other obligation that the Supplier may have under its Agreement with the Customer).
3.1. Subject to the terms set forth herein, the Supplier grants to the Customer and/or the Participant, and the latter accepts, for the term hereof, a limited, non-exclusive and non-transferable (save as provided in article 17) right to use, for his internal purposes, the Features available under the Customer's Service Plan or the Participant Account, respectively.
3.2. The Service is intended for normal end use, respecting the rights, freedoms and legitimate interests of others, and the Customer and the Participant are advised to use the Features available to them in accordance with such pertaining technical documentation, specifications and instructions as the Supplier may issue and update from time to time.
3.3. The Service may only be accessed in such manner and by such means as authorised by the Supplier, i.e. through the interfaces that the Supplier has provided or authorised therefor.
3.4. The Customer may reproduce the Software for his own installation and backup purposes only, and only to the extent such reproduction is necessary for his use of the Software in accordance with this Agreement.
3.5. As between the Parties, all Service-related Intellectual Property shall vest in, and is retained by, the Supplier and its licensors. Neither the Customer nor the Participant shall acquire any right thereto or otherwise in connection with the Service, except for the limited rights of use expressly set forth in this Agreement.
3.6. Where Documentation is available concerning a particular Feature, the Feature should be used in accordance with that Documentation.
3.7. Reproduction of the Software by persons other than the Supplier is only allowed for the purposes of Software installation and backup, and only to the extent that such reproduction is necessary for using the Software in accordance with this Agreement.
3.8. Each of the above rights shall be exercised solely for the respective Party's own internal legitimate purposes and none of these rights shall be sublicensed, assigned, encumbered or otherwise disposed of, save if and to the extent otherwise permitted under section 18.
4.1. The Supplier will use commercially reasonable efforts to provide the Customer with all Features covered by his Service Plan, and to provide the Participant with all Features of a Participant Account as described in the Documentation. The level of Service to which the Customer and/or the Participant is entitled (including the nature, scope, availability, means of accessing and providing and other particulars of the Supplier's Software-related technical support services) may depend on the Service Plan chosen. The Documentation explains in more detail the effects that the selection of a Service Plan can have on the Service.
4.2. Each Customer, Participant, User and anyone else who causes himself to be exposed to the Service or any part thereof acknowledges and agrees that:
(a) the Service (i) has not been designed to meet his specific requirements, and in particular, has not been designed to meet any requirements that any local law applicable to the Customer or the Participant may set out in regard to conducting recruitment, processing candidate personal data, retaining candidate documentation, or similar; (ii) may from time to time suffer interruptions and be occasionally unavailable, (iii) has and will continue to have certain bugs and vulnerabilities, and (iv) is not meant to be used in inherently dangerous circumstances;
(b) the Software, the Service and anything offered or delivered as a part of, in conjunction with, or by means of any Feature is provided on an "as is" and "as available" basis;
(c) his selection of a Service Plan and use of any of the Features are at his own risk, as are his exposure to, down- and upload of, as well as transmission, receipt, possession and other processing of information, computer programs, software code or other items through or due to the Service.
4.3. The Supplier has no obligation to enhance, modify or replace any part of the Service, or continue developing or releasing new versions thereof.
4.4. The Supplier aims to respond to support requests within 24 business hours but makes no commitment as to how quickly support will be provided or issues will be resolved.
4.5. The Service may provide links, references or access to third-party websites, resources or services and the latter may provide the same with respect to the Service. The Supplier is not responsible for the existence or qualities (including the availability, reliability and security) of such external sites, resources or services, does not endorse them and shall not be liable for any loss, damage, expenses or other consequences attributable thereto.
4.6. If you are the User and/or the Participant, you hereby request that the Supplier's performance of the Agreement commence immediately and that the benefits to which the User and/or the Participant is entitled hereunder, including, where applicable, the Features authorised under his Service Plan(s), be made available to him immediately. The User and/or the Participant acknowledges and agrees that by making the above requests he loses the right (if any) to withdraw from the Agreement and, where applicable, the right to withdraw from the Service Plan(s) in question. The User and/or the Participant further requests that the Features to be authorised under any future Service Plan he may obtain be made available to him immediately upon the Service Plan's commencement. The User acknowledges and agrees that by requesting this (and the respective Features becoming available to him) he loses the right, if any, to withdraw from the Service Plan.
5.1. By obtaining a Service Plan or a User Account, installing any Software, using any Feature or causing any of the foregoing to occur on his behalf the Customer shall be deemed to have agreed to and accepted liability for the payment of all fees and other charges associated with the applicable Service Plan, and consented to the same being calculated, billed, revised and adjusted according to the rules that the Supplier has established therefor (which, if not specified in the Customer's subscription documents, are available on the Supplier's website or on request). The same applies, mutatis mutandis, if the Customer permits or causes himself to be designated as the one responsible for paying for someone else's Service Plan.
5.2. Unless otherwise specifically agreed (e.g., with respect to a particular Campaign or Feature): (a) the Customer's billing cycle is either monthly or annual (as chosen upon subscription), starting on the day when his Service Plan commences or, if a free trial period applies, on the first day following the trial period; (b) payment for the Service is due in advance by the first day of the relevant billing period.
5.3. The Customer shall make his payments in the agreed currency, using a payment method acceptable to the Supplier.
5.4. The Supplier may alter the fees, rates and the billing cycle applicable to the Customer's Service Plan upon a month's notice. If the Customer does not agree with the respective change(s), his sole remedy shall be to cancel the Agreement or his Service Plan, with failure to do so signifying his agreement to the change(s).
5.5. The Supplier's fees are non-refundable. For instance: (a) if the Agreement or a Service Plan is cancelled or modified mid-billing period, the Customer will not be entitled to any refund (including any partial refund) as concerns that billing period; (b) payments attributable to future billing periods will not be refunded, unless otherwise explicitly agreed.
5.6. Upon on an upgrade or a downgrade from one chargeable Service Plan to another the amounts that the Customer has prepaid for the original Service Plan (i.e., the credit remaining on the relevant subscription) will be applied against the amounts payable for the new Service Plan.
5.7. The Supplier's fees and rates are exclusive of value added tax, sales tax and other public burdens, save where the Supplier has otherwise explicitly stated. The Customer shall be solely responsible for all taxes, duties and burdens that may be levied on his purchase, import, export, use or enjoyment of any item (including any right or other benefit) provided hereunder. Should any fee be subject to withholding tax by any government, Customer will reimburse the Supplier for such withholding tax.
5.8. All sums owed to the Supplier hereunder must be paid in full, without deducting any currency conversion or payment-related charges.
5.9. The Customer acknowledges that: (a) his payments are handled by third-party service providers; (b) the Supplier is not responsible for these parties or their services and has no liability as concerns payment processing; (c) late payment may result in the suspension of the Service, restriction of access to certain or all of the Features or the termination of the Agreement.
5.10. The Supplier may, in its absolute discretion, charge interest on overdue amounts at either 18% per annum or the relevant statutory rate, whichever it elects.
6.1. The Customer must be a person (natural or legal) or an entity with legal capacity. The Participant must be a natural person with legal capacity. Upon opening a User Account or a Participant Account, ordering a Service Plan, and otherwise when transacting with the Supplier, the User and the Participant shall use his true legal name and provide such true and accurate contact and other information as requested (the Supplier only asks for information that is warranted by the circumstances).
6.2. For the protection of those whose active legal capacity is restricted, the Supplier prohibits such persons from subscribing to, being subscribed to, and from using the Service. Full active legal capacity is usually attained by becoming of legal age (the age of majority), which, pursuant to the law governing this Agreement, occurs at the age of 18. Consequently, each natural-person Customer, Participant, User and Representative shall, by having assumed the respective role (explicitly or by performing any act identifying him as the respective party), be deemed to have represented to the Supplier that he is, and, in the Representative's case, that both he and the Customer are, at least 18 years old and capable of entering into contracts. The same representation is deemed to be made each time that the respective person causes himself (and, in the Representative's case, when he causes the Customer) to be exposed to the Service.
6.3. The Customer and the Participant must comply, and the Customer shall cause each User to comply, with all legal requirements applicable to their use of the Service, processing of Customer Data and other activities hereunder (including export control provisions and requirements as to the handling of Personal Data). The Customer and the User warrant that any Personal Data in a User Account has been acquired lawfully and properly and that his data processing activities are legal.
6.4. The Customer and the Participant warrant that they will not use the Service for sending unsolicited communications or uploading, transmitting, delivering, running, possessing or storing harmful code, malware or illegal (e.g. hateful, violent, vulgar, obscene) content, and in case of the Customer, he must ensure that none of the Users engage in any such activity.
6.5. The Customer specifically acknowledges that he is responsible as a ‘controller’ (as defined in the GDPR) of the personal data that he acquires through the Service and for obtaining any consent (or asserting another legal basis) required under applicable data protection laws when using the Service for Customer’s own recruitment purposes.
6.6. If the Supplier reasonably believes that the Customer’s, the User's, or the Participant’s data processing activities or content violate the law or otherwise conflict with the Agreement, it may, in its absolute discretion: (a) ask the User, Customer, and Participant (as applicable) to take such action as the Supplier considers necessary for remedying the matter (which, where feasible and legally permitted, will be the preferred option); or (b) remove, disable, restrict access to, or delete the data concerned without being liable (neither to the User, Customer, Participant, nor anyone else) for any loss, damage or other undesirable consequences resulting therefrom.
6.7. Any Customer Data that conflicts with the provisions of this Agreement may be removed, disabled and/or destroyed by the Supplier at its sole discretion.
6.8. Each Customer, Participant, User and anyone else who performs any of the acts mentioned in the opening paragraph of these Terms undertakes that he will not: (a) interfere with the proper functioning of the Service; (b) impose an unreasonable load on the Service or its infrastructure; (c) reproduce the Software, except as expressly permitted herein; (d) translate, adapt, arrange or otherwise alter the Software or reproduce the results of any such activity; (e) distribute or redistribute, including sell, rent, lease, lend or otherwise make available, the Software (neither the original Software nor any copy thereof) or any other part of the Service; (f) decompile, disassemble or otherwise reverse engineer the Software; (g) remove, alter, hide or obscure any copyright notice, trademark or other proprietary rights notice embedded in, appearing on or otherwise pertaining to any part of the Service; (h) create or attempt to create any product or service that is substantially similar to, or performs the same or substantially similar functions as, or otherwise competes with any part of the Service, or purports to be created, provided or approved by the Supplier or its licensors; or (i) cause anyone else to do any of the foregoing; and acknowledges that this section does not relieve him of any of his statutory obligations.
6.9. The Service is for business users, to be enjoyed as a business tool. It is not intended for personal or household use or any other consumer application. Any natural person (individual) wishing to use any of the Features for a purpose unrelated to his trade, business, craft or profession must, before obtaining a Service Plan for the respective Feature(s), notify the Supplier that he wishes to use the Service as a consumer. The failure to provide such notice will, to the maximum extent permitted by law, result in the following: (a) the User/Participant not being able to rely on being a consumer, i.e., he shall be deemed to have waived the respective right; (b) no consumer law applying to the Parties’ relations; and (c) the User/Participant forfeiting any and all consumer rights hereunder, including particularly, if applicable, the right to withdraw from the Agreement and the Service Plan in question.
6.10. Patent assertion entities (also referred to as non-practicing entities or patent trolls), meaning persons or entities that derive or seek to derive a substantial part of their revenue from the offensive assertion of patent or other intellectual property rights, are generally restricted from being Users and Participants and shall not enjoy any of the rights that a Customer or Participant is intended to have hereunder, except as otherwise provided in the following part of this section. A patent assertion entity and anyone acting on behalf, on the instructions or for the benefit of, or directly or indirectly controlling, being controlled by, or under common control with, such an entity is prohibited from being a User and/or Participant and must not perform any of the acts mentioned in the definition of "User" and/or “Participant”, save upon the Supplier's prior, explicit and informed consent and the respective person or entity having given such undertakings and assurances as the Supplier reasonably may request.
6.11. Customer agrees that the Supplier may from time to time include the Customer's name and logo in its customer listings, examples of Software or Service use cases, marketing materials, press releases and similar communications.
7.1. The Representative personally warrants to the Supplier that: (a) the Customer conforms to the description set forth in the first sentence of section 6.1; (b) he is authorised to act on the Customer's behalf; and (c) this Agreement is binding on the Customer.
7.2. The Representative agrees that if the Customer does not conform to the description in the first sentence of section 6.1 or if this Agreement proves to be void due to the Representative's lack of authority, he shall, if the Supplier (in its absolute discretion) so chooses and respectively informs the Representative, be deemed to have entered into the Agreement on his own behalf (i.e., in place of the Customer whom he represented or purported to represent).
8.1. The Customer shall be fully responsible for the activity that occurs under his User Account, including all Customer Data processing and other acts performed through or by means thereof, and must notify the Supplier promptly upon learning of any security breach relating to or unauthorized use of his User Account. The Customer acknowledges and confirms that he is responsible for any action conducted through the User Account and undertakes to ensure that each User complies with the Agreement.
8.2. It shall be the Customer's own responsibility to maintain the confidentiality of his usernames, passwords, access tokens, and similar credentials.
8.3. The Supplier shall not be responsible for any loss, damage or other consequences that may result from any unauthorized use of the Customer's User Account, username or password.
8.4. The Supplier has no obligation to monitor or access any User Account, but may do so in cases where such action is reasonably justified (e.g., in order to prevent illegal or harmful activity, provide customer support, perform its duties hereunder or comply with legal requirements).
8.5. If the Supplier reasonably believes that Customer Data or the User's or Customer’s data processing activities violate the law, infringe on anyone's Intellectual Property or proprietary or personal rights, or if the Customer or User performs any of the acts mentioned in section 6.8. or is otherwise in conflict with the Agreement, the Supplier may, in its absolute discretion: (a) ask the Customer or User to take such action as the Supplier considers necessary for remedying the matter (which, where feasible and legally permitted, will be the preferred option); or (b) remove, disable, restrict access to, or delete the User Account or data concerned without being liable (neither to the User, nor to the Customer, nor anyone else) for any loss, damage or other undesirable consequences resulting therefrom.
8.6. The User acknowledges that the rights he has and the control he can exercise in relation to Customer Data, including the ability to access, process and dispose of the same, are commensurate with his role in the Workspace. There may be other Users in the Workspace, whose status or privileges permit them to enable, disable, limit, suspend or terminate, or whose decisions may otherwise affect the User's access to and his rights concerning Customer Data. The same applies in relation to the Workspace itself, its sub-environments and the Features available in connection therewith. In case another User exercises such power or there is a disagreement concerning anyone's permissions or privileges in a Workspace or rights with respect to Customer Data, it is a matter to be resolved between Users. The Supplier has no obligation to intervene, and usually does not intervene, in such disputes and in any event is not responsible for any User's decisions, acts or omissions in relation to, or which affect, another User.
8.7. As between the Parties, Customer Data belong to the Customer and his instructions as to Customer Data override those of any other User. The User acknowledges this and shall not hold the Supplier liable for any undesirable consequences that he or anyone else may suffer due to the Supplier's disposal or processing of Customer Data pursuant to the instructions of a Customer.
8.8. The User, whether a Customer or not, acknowledges and agrees that if a Workspace is closed (whomever by), then the Supplier has no obligation to maintain or provide Customer Data stored in that Workspace and may, unless legally prohibited, delete the same.
9.1. The Participant Account enables a Participant to access an additional set of Features, as described in the Documentation. The Participant is not required to establish a Participant Account to use the Service, but it may be necessary for him in order to make use of certain Features. The Supplier is not obliged to provide the Participants without a Participant Account the same set of Features as the Participants with a Participant Account.
9.2. The Participant shall be fully responsible for the activity that occurs under his Participant Account, and must notify the Supplier promptly upon learning of any security breach relating to or unauthorized use of his Participant Account.
9.3. It shall be the Participant’s own responsibility to maintain the confidentiality of his usernames, passwords, access tokens, and similar credentials.
9.4. The Supplier shall not be responsible for any loss, damage or other consequences that may result from any unauthorized use of the Participant Account, username or password.
9.5. The Supplier has no obligation to monitor or access any Participant Account, but may do so in cases where such action is reasonably justified (e.g., in order to prevent illegal or harmful activity, provide customer support, perform its duties hereunder or comply with legal requirements).
9.6. If the Supplier reasonably believes that data in the Participant Account or the Participant’s data processing activities violate the law, infringe on anyone's Intellectual Property or proprietary or personal rights, or if the Participant performs any of the acts mentioned in section 6.8. or is otherwise in conflict with the Agreement, the Supplier may, in its absolute discretion: (a) ask the Participant to take such action as the Supplier considers necessary for remedying the matter (which, where feasible and legally permitted, will be the preferred option); or (b) remove, disable, restrict access to, or delete the Participant Account or data concerned without being liable (neither to the Participant, nor anyone else) for any loss, damage or other undesirable consequences resulting therefrom.
9.7. The Participant Account shall contain relevant information pertaining to the Participant’s contact information, professional skills, qualifications, work experience and any further relevant information which may be useful for any Customer to make hiring decisions. The Participant is solely responsible for the quality and the correctness of any such information, and the Participant undertakes to only submit content that is true, up-to-date, and does not infringe on the rights of third parties.
9.8. The Participant is aware that any information stored by them in the Participant Account may be shared with the Supplier’s Customers and Users as well as publicly. The scope of information shared can, in most cases, be preset or defined by the Participant in the settings pane. The Supplier is not liable for any direct or indirect damages or any outcomes resulting from the fact of the disclosure of information in the Participant Account to other Users. The Supplier does not require the Participant to fill in any information other than those which are essential for the creation of the Participant Account, or share any information with any Customer or User, and the Participant is aware that the scope of information that may be requested by a Customer or User, as well as the legal basis under which a Customer or User may lawfully request or access such information, may differ from jurisdiction to jurisdiction. The Participant is authorized to change (at any time) the information stored in the Participant Account, which does not always cause the amendment of information that had previously already been shared with a Customer. The more precisely the Participant fills in his details, the higher may be his chances to successfully complete the recruitment process of a particular Customer. The Supplier does not guarantee that the Participant finds a suitable career opportunity or receives any offer.
9.9. The Participant acknowledges and agrees that if a Participant Account is closed (whomever by), then the Supplier has no obligation to maintain or provide data stored in that Participant Account and may, unless legally prohibited, delete the same.
10.1. With respect to any product of intellectual activity, including any object of Intellectual Property, that is submitted, contributed or otherwise knowingly made available for inclusion in the Software or any other part of the Service, the Supplier shall be deemed to have been granted a non-exclusive, royalty-free, worldwide, perpetual (save as limited by law), irrevocable, freely transferable and fully sublicensable right to use, distribute, reproduce, modify, adapt, publish, translate, transmit, publicly perform, display and make available the same (in whole or in part) and to incorporate it into other items, including works and inventions, in any form or medium now known or later developed. Each person making such a contribution warrants to the Supplier that he is authorised to do so and that neither he nor any author of any item that may be embedded in his contribution will seek any compensation or reimbursement in connection therewith.
11.1. Any warranty of the Supplier not expressly stated herein shall be deemed withheld. The Supplier disclaims, to the maximum extent permitted by applicable law, all statutory and implied warranties and course of performance, course of dealing and usage related expectations with respect to the Service.
11.2. Without prejudice to the generality of the foregoing, the Supplier in particular makes no representation and gives no warranty or guarantee: (a) that the Service will meet anyone's expectations; (b) that the Service is fit for any particular purpose, accurate, timely, of satisfactory quality, enjoyable, available regardless of, or in any specific, jurisdiction, or non-infringing of third-party rights; (c) that access to or the operation or use of the Service will be uninterrupted, secure or error-free; (d) that any defect in the Service will be corrected; (d) that the Service or any means by which it is accessed or used is free of malware or other harmful components; (e) with respect to any third-party item; or (f) to anyone who is not a Customer.
11.3. The Supplier's disclaimers in connection with the Service apply both to the Service as a whole and each component thereof.
To the extent not prohibited by applicable mandatory law, and subject to section 12.3:
12.1. The Service is provided “as is” and “as available”, with all faults and defects; and, in any event, the Supplier shall not be liable (under any theory of liability) for any undesired consequences, including any loss or damage, resulting from:
(a) anyone's use or inability to use the Service or failure to use a Feature in accordance with the Documentation, the Agreement or applicable law,
(b) the properties of the Service or anything delivered via the Service,
(c) anyone having to procure, or the procurement of, any substitute item(s) for the Service or any information, resource or other item ordered, received, owned, controlled or enjoyed through the Service,
(d) any message or other communication received or transaction entered into through or from the Service,
(e) unauthorized access to, or interruption, alteration, loss, corruption or deletion of, anyone's transmissions or data, including an unauthorized access to a User Account or a Participant Account or any unauthorized use of any User's or Participant’s credentials,
(f) any installation, implementation, upgrade, downgrade, modification or customisation of the Software not carried out by the Supplier,
(g) using a Feature in conjunction with an item not provided or approved by the Supplier,
(h) using a third-party item in conjunction with a Feature not in accordance with the relevant third-party documentation or instructions,
(i) not applying an available fix, patch, update, service pack or upgrade that would have avoided the harmful event,
(j) inherently dangerous application of any of the Features or anything else provided hereunder,(k) the statements or conduct of any person having access to the Service, or
(l) any other matter relating to the Service or any part thereof;
REGARDLESS of whether such are suffered directly or indirectly or are immediate or consequential and whether arising in contract, tort or otherwise; PROVIDED, HOWEVER, that
(α) this section shall not prevent claims for the compensation of direct financial loss suffered by the Customer or a Participant due to the Supplier’s intentional or grossly negligent breach of this Agreement, or financial loss resulting from the Supplier’s causing personal injury to, or the death of, the Customer, the User, or the Participant,
(β) the total cumulative liability of the Supplier, hereunder and otherwise, shall in no event exceed the aggregate amount of all fees and charges (exclusive of value added and sales taxes) that the respective Customer or Participant disbursed to the Supplier for the Service during the 6 months immediately preceding that month in which the event giving rise to liability occurred, or if the Customer or the Participant had no obligation to make such payments during the period mentioned, then EUR 50 (fifty euros).
12.2. Neither Party shall be liable for breaching its obligations due to a circumstance it reasonably could not have foreseen and which is beyond its control, such as, e.g., a force of nature, conduct of public authorities, war, civil unrest, act of terror, acts of God, nontrivial cyberattack, strike, power outage, internet failure, failure of a third-party hosting or utility service or any other circumstance qualifying as force majeure under the applicable law -- to the extent that the respective circumstance prevented or hindered the Party's performance. For the avoidance of doubt, this section:
(a) is not intended to derogate from or limit the ambit of any statutory limitation or exclusion of liability;
(b) shall not be construed to limit the amount of, or excuse the Customer from paying, any fee or other consideration owed hereunder.
12.3. This section shall neither exclude nor limit mandatory liability for any: (a) wilful breach by the Supplier of any of its obligations; or (b) death or personal injury caused by a defective item produced by the Supplier (mandatory product liability). This section is without prejudice to the exclusions and limitations of liability that apply by operation of other provisions hereof.
12.4. Nothing herein shall prevent the Supplier from invoking, or otherwise prejudice the Supplier's recourse to, any statutory defence, remedy or exclusion or limitation of liability.
12.5. The protection afforded to the Supplier hereunder, and any statutory protection that the Supplier may enjoy, extends to anyone who acts on the Supplier's behalf, exercises its rights or performs its duties or assists the Supplier in doing the same.
13.1. The Customer and the Participant shall defend, indemnify and hold harmless the Supplier, its officers, directors, employees, contractors, agents and representatives from and against all claims made by and all damages, liabilities, penalties, fines, costs and expenses payable to any third party that arise from the Customer’s or any User’s: (a) breach of this Agreement; (b) misuse of the Service or any component thereof; (c) processing of Customer Data; or (d) infringement of anyone’s Intellectual Property or proprietary or personal rights.
Note on interpretation: the terms 'controller' and 'processor' have the meanings assigned to them in the GDPR.
14.2. The Customer, the Representative, each Participant, User and anyone else who causes himself to be exposed to the Service or any part thereof acknowledges that: (a) the Service allows the Customer to process certain Personal Data about Participants; (b) such information forms part of Customer Data and the Customer is its ‘controller’; (c) the Supplier is not the ‘controller’, but the ‘processor’ of Customer Data and has no control over, nor any obligation in connection with, such data or the processing thereof; (d) a Sub-processor is also a 'processor' of such Customer Data but one who acts under the Supplier's responsibility (and thus enjoys the protection mentioned in section 12.5.) (e) any enquiry, request, objection, complaint or claim that a person may have in connection with the processing of Customer Data should be addressed to, and resolved by, the respective Customer (with such assistance from the Supplier as may be necessary and appropriate in light of its role as the 'processor' of the respective information).
14.6. The DPA sets out further rights and obligations of the Customer and the Supplier in relation to the processing referenced in section 14.2.
15.1. The Customer and the Participant acknowledge that, from time to time, circumstances may arise which make it necessary or desirable to modify certain provisions of this Agreement. Such circumstances include: (a) the Supplier's launch of a new service or a modification to the Service; (b) a significant change in the Supplier's operating environment; (c) an order or a judgment being entered against or in favour of the Supplier; (d) a significant corporate event, such as, e.g., the Supplier's merger, acquisition or transformation; (e) the Supplier's transfer of the enterprise or a part of the enterprise to which the Agreement pertains; (f) the ambiguity, invalidity, voidability or unenforceability of a provision herein; (g) any other event whose occurrence or expected occurrence in the Supplier's reasonable judgment necessitates an amendment hereto.
15.2. The Customer and the Participant agree that: (a) upon any of the circumstances referenced in the preceding section the Supplier may effect such changes to the Agreement as it reasonably deems appropriate; (b) the Supplier may amend the Agreement by providing the Customer and the Participant with the revised version (or the revised part) of the Agreement or by posting the same on a website and providing the Customer and the Participant with a link thereto; (c) if the revised version of the Agreement substantially reduces the Customer's rights or increases his responsibilities, the Supplier will give the Customer and the Participant reasonable notice of such new version's entry into force.
15.3. Notwithstanding anything herein to the contrary, the Supplier may modify the Service or any part thereof at any time and for any reason, with or without notice. Unless otherwise expressly agreed, the use of any new Features, versions, releases, updates or other modifications that the Supplier may make available in connection with the Service shall be subject to the Agreement. The Customer's and the Participant’s continued use of the Service after any such modification shall constitute his consent to the respective modification(s).
15.4. If the Customer or the Participant does not agree with the Supplier's changes (whether to the Agreement or the Service), his sole remedy shall be to cancel the Agreement and stop using the Service.
16.1. The Supplier may discontinue the Service or any part thereof or cease providing the same to any Customer or Participant on a month's notice and may, with or without notice, suspend or restrict access to the Service for any Customer (or Participant, if applicable) whose payment for the Service is overdue more than a week, or whose use of the Service conflicts with this Agreement.
16.2. The Supplier may suspend performance under the Agreement in whole or in part with immediate effect if it is legally required to do so.
17.1. The Agreement between the Customer and the Supplier can only be terminated by closing the Customer’s User Account. For the avoidance of doubt, where the Customer has more than one User Account, closing an account will only terminate the Agreement pertaining to that account.
17.2. Due to the fact that it is possible to use certain Features of the Service (e.g. participate in Campaigns) as a Participant without Participant’s Account, closing of the Participant Account does not cause the termination of the Agreement between the Participant and the Supplier. Where the Participant:
(a) does not have a Participant Account, but is bound by this Agreement through having participated or caused oneself to be involved in a Campaign, whether actively or passively, or otherwise subjecting oneself to a Feature (as described in the definition of “Participant”) – the Agreement between the Supplier and such Participant can be terminated by notice to the other Party or, if giving notice to the Supplier is impracticable or would result in unreasonable delay or expense, then by the Participant’s ceasing all activities hereunder;
(b) does have a Participant Account, then by performing the actions stipulated in point (a) above and, in addition, by closing the Participant Account pursuant to section 17.3.
17.3. In order for the Customer to close his User Account (or for the Participant to close his Participant Account), he must log on to the Service and follow the instructions provided there, or, should such be unavailable, notify the Supplier and follow the latter's instructions. It should be appreciated that Features (including the appearance, titles and location of menus, tabs, fields, buttons, icons and other objects displayed on the Service) are subject to change, meaning that the steps required to close the User Account or the Participant Account may vary from time to time. The Supplier will endeavour to keep this procedure as straightforward as possible and will update the Documentation if any changes are made thereto.
17.4. Either Party (Customer and Supplier) may close the Customer's User Account and shall by so doing be deemed to have terminated the Agreement (which, in the civil law context, means 'cancellation', not 'withdrawal'), effective upon the closure of the account, provided that: (a) if the User Account is closed by the Supplier, the Customer must be given at least a month's notice thereof (unless section 17.6 applies or the User Account is closed at the Customer's request); and (b) where the User Account is closed by a Party entitled to withdraw from the Agreement, such Party has failed to notify the other that by closing the User Account he is exercising his right to withdraw (which notice must be served prior to or concurrently with closing the User Account and shall result in the Agreement being deemed to have been terminated by withdrawal).
17.5. Either Party (Customer and Participant) may close the Participant Account and shall by so doing be deemed to have terminated the Agreement (which, in the civil law context, means 'cancellation', not 'withdrawal'), effective upon the closure of the account, provided that: (a) if the Participant Account is closed by the Supplier, the Participant must be given at least a month's notice thereof (unless section 17.6 applies or the Participant Account is closed at the Participant’s request); and (b) where the Participant Account is closed by a Party entitled to withdraw from the Agreement, such Party has failed to notify the other that by closing the Participant Account he is exercising his right to withdraw (which notice must be served prior to or concurrently with closing the Participant Account and shall result in the Agreement being deemed to have been terminated by withdrawal).
17.6. Upon a Party's material breach of Agreement the other Party may terminate the Agreement forthwith. A material breach of Agreement shall, inter alia, be deemed to have occurred if a Party, having breached any of his principal obligations hereunder, fails to discontinue or remedy such breach within 14 days (or, where a 14-day period is unreasonably short, such longer period as reasonably required) after notice from the other Party specifying the breach and requiring it to be discontinued or remedied.
17.7. Any Customer or Participant having entered into this Agreement as a consumer (as determined under the applicable law) may withdraw from the Agreement within 14 days of having become a party hereto. Notwithstanding anything herein to the contrary, any consumer who withdraws from the Agreement pursuant to the preceding sentence is entitled to a full refund of the fees and charges he has paid to the Supplier hereunder, provided, however, that he also returns to the Supplier, or reasonably compensates the latter for the value of, everything he has received hereunder.
17.8. The Customer understands and agrees that upon any termination of this Agreement: (a) all rights that the Customer has been granted hereunder will terminate; (b) the Customer must cease all activities authorized by the Agreement; (c) all amounts that the Supplier is entitled to be paid hereunder become due (save for amounts that already are); (d) all Customer Data and other information associated with the Customer's User Account may be deleted or become unavailable to the Customer; (e) the Customer will receive no refund or other compensation for any unused time or credit on a subscription, for any licence or subscription fee, any data associated with any User Account, or for anything else; (f) all his Software-related obligations hereunder shall survive until the Customer has fully removed all Software from his devices, systems and storage media.
17.9. The Participant understands and agrees that upon any termination of this Agreement: (a) all rights that the Participant has been granted hereunder will terminate; (b) the Participant must cease all activities authorized by the Agreement; (c) all amounts that the Supplier is entitled to be paid hereunder become due (save for amounts that already are); (d) all Personal Data and other information associated with the Participant Account may be deleted or become unavailable to the Participant; (e) the Participant will receive no refund or other compensation for any unused time or credit on a subscription, for any license or subscription fee, any data associated with any Participant Account, or for anything else; (f) all his Software-related obligations hereunder shall survive until the Participant has fully removed all Software from his devices, systems and storage media.
17.10. Those provisions of the Agreement that either by express language or reasonable construction are intended to survive its termination (such as, e.g., provisions concerning Service-related Intellectual Property, contributions to the Service, disclaimers, limitation of liability, indemnities, choice of law and jurisdiction) shall so survive and will be enforceable notwithstanding any termination hereof.
With regard to assignment, sublicensing and other disposals, the Parties have agreed that:
18.1. The Customer shall not, without the Supplier's prior explicit consent, sublicense, assign, encumber or otherwise dispose of any of his rights or obligations hereunder, except that the Customer may, without seeking the Supplier's consent: (a) dispose of his financial claims, i.e., claims whose sole object is the payment of money to the Customer; and (b) assign the entire Agreement, i.e., all his rights and obligations hereunder, or cause the same to be transferred, as part of the Customer's general succession (including merger, acquisition and transformation), division, transfer of the enterprise (or a substantial, coherent part of the enterprise) to which the Agreement pertains or divestiture of all or substantially all of his assets as a whole;
18.2. The Supplier may: (a) sublicense, assign, encumber and otherwise dispose of any and all of its rights hereunder; and (b) assign this Agreement, i.e., all its rights and obligations hereunder, or cause the same to be transferred: (i) to its parent, any of its wholly- or majority-owned subsidiaries or a wholly- or majority-owned subsidiary of its parent; or (ii) as part of the Supplier's general succession (including merger, acquisition and transformation), division, transfer of the enterprise (or a substantial, coherent part of the enterprise) to which the Agreement pertains or divestiture of all or substantially all of its assets as a whole; or (iii) due to the Supplier ceasing to hold rights in the Software or the Service;
18.3. Where a Party's consent is required, it shall not be unreasonably withheld or delayed.
19.1. The Customer and the Participant agree that the Supplier may provide notice to them: (a) through a Feature, e.g., by posting the notice on a web page that forms part of the Service or using a messaging feature of a locally installed Software application; (b) by email to the address associated with the Customer's User Account or the Participant Account, as applicable; or (c) by mail or courier to the address provided for that Customer or Participant.
19.2. All notices, requests, enquiries, complaints and other communications to the Supplier should be sent to the address (email or postal) specified under the definition for "Supplier".
19.3. A notice shall be deemed to have been received: (a) the same day if given through a Feature; (b) the next day if given by email; or (c) in the case of a notice sent by mail or courier, and providing that delivery charges have been paid, five days after posting or the courier taking charge of the notice.
20.1. This Agreement and all matters relating to the Service shall be governed by Estonian law. The United Nations Convention on Contracts for the International Sale of Goods does not apply to any of the foregoing.
21.1. All disputes arising from or otherwise concerning this Agreement or the Service (including disputes concerning the formation or validity hereof) shall be resolved by arbitration as follows: (a) the matter shall be arbitrated by the Arbitration Court of the Estonian Chamber of Commerce and Industry (ACECCI); (b) the proceedings shall be conducted in accordance with the ACECCI’s then-current arbitration rules; (c) the seat of arbitration shall be Tallinn, Estonia; and (d) any decision (order, judgment or other) that the ACECCI may deliver in such a dispute shall be enforceable in all jurisdictions.
21.2. Each Customer, Representative, Participant, User and anyone else who performs any of the acts mentioned in the opening paragraph of these Terms hereby irrevocably submits to the above jurisdiction and waives any and all objections he may have thereto.
21.3. If the above agreement on arbitration proves to be invalid for whatever reason, all disputes to which it was intended to apply shall be subject to the exclusive jurisdiction of Estonian courts, with Harju County Court in Tallinn as the court of first instance (save where the rules of civil procedure provide for the mandatory jurisdiction of another Estonian court, in which event the latter shall apply).
22.1. Unless otherwise expressly agreed, if any provision of this Agreement proves to be void by reason of it violating mandatory law, such provision shall, for those specific circumstances and only in that particular respect in which it is void, be deemed to have been amended between the parties concerned so as to comply with the law. Any such amendment shall be limited to what is necessary for making the provision valid, preserving as much of its original meaning and intended effect as possible.
Last revised: July 1, 2023
You can find the previous version of the Terms of Service that was applicable until July 1, 2023 under Old Terms of Service.