Terms and conditions
This Appendix 1 (Terms and Conditions) constitute an appendix to the Agreement entered
into between Talentium and the Customer and should govern the Parties responsibilities
and obligations in relation to the Services under the Agreement.
1 DEFINITIONS
Unless the context or circumstances clearly indicate otherwise, the following words and
phrases shall have the meanings specified below:
“Access Point”
“Agreement”
“Customer”
“Customer's Data”
“Trial Services”
”Disclosing Party”
”Effective Date”
”GDPR”
”Talentium”
“Master
Agreement”
Service
“Party” or “Parties”
means the point or points where Talentium connects the
Services to the internet unless the Parties have agreed
otherwise.
has the meaning set forth in the recital of the Master Service
Agreement, which means the Master Service Agreement
including its appendices, entered into between the Parties.
has the meaning set forth in the Master Service Agreement.
means data or other information, excluding personal data,
that Customer or User, or another party on Customer's or a
User's behalf, includes in the Service or in any other way
puts at Talentium's disposal.
has the meaning set forth in Clause 3.1 of the Master Service
Agreement.
has the meaning set forth in Clause 10.1.
means the date on which the Parties entered into this
Agreement. In relation to Customers using the Trial Services,
the Effective Date means the date on which the trial period
starts.
means the Regulation (EU) 2016/679 of the European
Parliament and of the Council of 27 April 2016 on the
protection of natural persons with regard to the processing
of personal data and on the free movement of such data,
and repealing Directive 95/46/EC (General Data Protection
Regulation).
has the meaning set forth in the recitals of the Master
Service Agreement and refers to Talentium AB.
has the meaning set forth in the recital of the Master Service
Agreement.
has the meaning set forth in the recitals of the Master
Service Agreement.
“Receiving Party”
“SCC”
“Services”
“Platform”
“Third Party Software”
”User”
has the meaning set forth in Clause 10.1.
means the Arbitration Institute of the Stockholm Chamber of
Commerce.
means the services that are ordered by the Customer and
provided by Talentium, as further defined in Clause 1.2 of
the Master Service Agreement.
means Talentium’s recruitment platform as further defined
in Clause 1.1 of the Master Service Agreement.
means a software owned by a third party and licensed to
Talentium, which is used in or for the Services. The Customer
is entitled to use the Third Party Software in accordance
with this Agreement and other supplementary terms and
conditions communicated by Talentium, if any.
means the Customer’s personnel, consultants or other
parties or individuals who are authorised by the Customer to
use the Services.
2
2.1
2.2
3
TALENTIUM’S OBLIGATIONS
Talentium shall, from the Effective Date, provide the Services, including Trial Services, at the
Access Point in accordance with the terms and conditions of the Agreement.
Talentium may engage sub-contractors for performance of the Services and other
obligations under the Agreement. Except for as under 7.1.4 and 11.3 below, Talentium has
the same responsibility for work performed by sub-contractors as for its own work.
THE CUSTOMER’S OBLIGATIONS
In order to enable for Talentium to perform its obligations under the Agreement, the
Customer is responsible for the following:
a) The connection and communication between the Customer and the Access Point. The
Customer is also responsible for ensuring that it has the equipment, software and
technical prerequisite that is required for the use of the Services.
b) The Customer’s Data, including backup of Customer's Data, unless otherwise follows
from the Agreement.
c) The Customer shall ensure that log-in information, security methods and other
information provided by Talentium for access to the Services are handled
confidentially in accordance with Clause 10 (Confidentiality). The Customer shall
notify Talentium immediately in the event of any unauthorised access to information
in accordance with this clause. The Customer acknowledges that this obligation
includes that the Customer shall ensure that its authorised Users do not share its
log-in information with each other or any third party.
d) The Customer shall notify Talentium immediately upon discovery of any
infringements or attempted infringements that might affect the Services.
e) The Customer shall ensure that all Users will follow all applicable laws, guidelines and
recommendations when using the Services.
4
4.1
4.2
4.3
4.4
4.5
4.6
4.7
5
5.1
5.2
THE CUSTOMER'S USE OF THE SERVICES
Subject to the Customer’s fulfilment of the terms of the Agreement, Talentium grants the
Customer a non-exclusive, non-transferable and revocable license to use the Services for
the Customer’s own internal business purposes, and for such purposes a license to grant to
the purchased number of Users, a right to access and use the Services, all during the term
of the Agreement and in accordance with the terms and conditions set forth herein.
The Customer may not: i) copy or transfer any software, content or source code that is
included in the Services without written permission from Talentium; ii) let anyone other
than the Users nominated in accordance with Clause 4.3 use the Services, and/or iii) use the
Services in any way that causes, or may cause, damage to the Services or Talentium,
impairment of the availability or accessibility of the Services, or in any way which is
unlawful, illegal, fraudulent, or harmful.
The Customer or the Customer’s contact person as set out in Clause 6 shall specify each
User that is authorised to use the Services by inviting them to the Services. If a person is no
longer authorised to use the Services, the Customer shall immediately remove their access
by terminating the User’s license or transfer the license to a new User. For the avoidance of
doubt, a transfer of a license to a new User means that a new User account is created. The
Customer shall ensure that the total number of Users authorized to use the Services shall
never exceed the purchased number of licenses.
The Customer is responsible for all Users’ use of the Services and shall ensure that the Users
comply with the terms and conditions of the Agreement when using the Services.
The Customer is required to follow any information in writing provided by Talentium from
time to time for the use of the Services. Such information may include documents from
Third Party Software providers such as acceptable use policies or similar.
4.6 Customer agrees that Talentium may reference Customer as a Talentium customer
by using Customer’s name and logo on Talentium's website, in sales presentations, and
in marketing materials or press releases without prior approval, including during any
trial periods or testing phases, and upon any login to the system.
The Customer is responsible for ensuring control over Customer’s Data handled in the
Services and for ensuring that the Customer can prevent the data from spreading in
accordance with the requirements in applicable legislation.
LIMITATION OF ACCESS TO THE SERVICES
In addition to what is set out in Clause 6.3.2 in the Master Service Agreement, Talentium
has an unrestricted right to temporarily or permanently restrict continued access to the
Services by the Customer or a User, or give notice to terminate the Agreement or a User
account, with immediate effect if the Customer or a User:
a) within the Services processes information in a way that entails infringement of
another party's copyright or other rights that conflict with applicable legislation or
otherwise is found to be illegal, unethical or immoral, or
b) without authorisation attempts to destroy, distort, or obtain access to information
within the Services.
If Talentium exercises this right, Talentium shall notify the Customer unless prohibited by
law, court order or administrative decision by a competent authority. Furthermore,
5.3
6
7
7.1
7.1.1
7.1.2
7.1.3
7.1.4
7.1.5
7.2
7.2.1
Talentium has a right to compensation for loss or damage, including compensation for loss
of goodwill, caused by the Customer's or User’s action according to points a)-b) above.
Talentium may carry out measures that affect the availability of the Services if required for
technical, maintenance, operational or safety reasons. Talentium shall perform such
measures promptly and in a manner that limits the disruption. Talentium undertakes to
notify the Customer within a reasonable time before such measures and, if possible, carry
out such measures outside of normal office hours. For the avoidance of doubt, normal
office hours refer to CET/CEST 08.00-17.00 on business days applicable to Talentium.
CONTACT PERSONS
The Customer shall designate a contact person who shall be responsible for the cooperation
in regard to the Agreement. The Customer shall notify Talentium of the designated contact
person. If the Customer does not notify Talentium, the person entering into this Agreement
on behalf of the Customer will be considered the contact person.
INTELLECTUAL PROPERTY RIGHTS
Talentium and/or Talentium’s licensors hold all rights, including intellectual property rights,
to the Services and the software it includes. Unless otherwise set forth in this Agreement,
nothing in the Agreement or other documentation between the Parties shall be considered
to constitute a transfer of intellectual property rights between the Parties.
Talentium’s responsibility
Talentium shall ensure that the Customer's use of the Services does not infringe any
copyright, patent or other intellectual property right. Talentium undertakes, at its own
expense, to defend the Customer against any claims or actions regarding infringement of a
third party's rights due to the Customer's use of the Services. Talentium shall also indemnify
the Customer for any costs or damages that the Customer may become liable to pay as a
result of a final judgment or settlement.
The obligation by Talentium under 7.1.1 only applies if the Customer has notified Talentium
in writing of a claim or action within a reasonable time and Talentium has sole control over
the defence against such action and the sole right to negotiate any agreement or
settlement.
If a third party claims that the Customer’s use of the Services infringes a third party's rights,
Talentium is responsible for ensuring that the necessary rights are obtained, that another
non-infringing software is acquired, or, if none of the foregoing is commercially viable for
Talentium, that the Agreement is terminated and that any unused part of prepaid license
fees are refunded to the Customer.
Notwithstanding the above, with respect to infringement claims related to Third Party
Software, Talentium´s liability and obligations are instead limited to taking the actions set
out in Clause 11.3.
Unless otherwise stated in this Clause 7.1, Talentium has no liability to the Customer for
infringements of a third party's intellectual property rights.
The Customer’s responsibility
It is the Customer’s responsibility to obtain the necessary rights to use Customer’s Data
within the scope of the Services. The Customer undertakes to defend, at its own expense,
Talentium against any claims or actions regarding infringement of a third party's copyright,
patent or other intellectual property rights due to use of Customer’s Data within the scope
of the Services. The Customer furthermore undertakes to indemnify Talentium against any
costs or damages that Talentium may become liable to pay as a result of a judgment or
settlement.
7.2.2 The obligation by the Customer only applies if Talentium has notified the Customer in
writing of a claim or action within a reasonable time and the Customer has sole control over
the defence against such action and the sole right to negotiate any agreement or
settlement.
7.2.3 Unless otherwise stated in this Clause 7.2, the Customer is not liable towards Talentium for
infringements of a third party's intellectual property rights.
8 CUSTOMER’S DATA
8.1 In the relationship between the Customer and Talentium, the Customer is the holder of all
rights pertaining to Customer's Data. Unless otherwise agreed in writing, work in
connection with transferring Customer's Data to the Customer during the term of the
Agreement is an additional service.
8.2 Talentium does not assume any liability for Customer’s Data.
8.3 The Customer is solely responsible for Customer’s Data. The Customer is liable for ensuring
that Customer’s Data complies with all applicable laws, guidelines and recommendations for
the Services, and information in writing regarding the use of the Services. The Customer is
liable for, and shall indemnify and hold Talentium harmless from and against, all costs,
expenses, damages and losses, including any interest, fines, legal and other professional
fees and expenses awarded against, incurred or paid by Talentium as a result of or in
connection with any breach by the Customer of its undertakings under this Clause 8.
8.4 Talentium has the right to delete Customer’s Data:
a) In accordance with Clause 14 (Winding up the Services) at termination of the
Agreement.
b) After thirty (30) days of giving notice thereof, in the event that Talentium finds, or
have reason to believe, that the Customer has handled information in a way that
entails breach of copyright, intellectual property right or which is otherwise to be
considered as being unserious or unethical.
c) After thirty (30) days of giving notice thereof, if the Customer in any other way than
as described in b) above does not comply with applicable Swedish and/or
international legislation with regard to the information which is processed in any way
within the Services.
8.5 Talentium has the right to, for technical reasons, transfer information in the Services to
another data medium. Recovery of backed-up information may take place at the Customer's
request for a fee according to the price list applicable from time to time or to what has
otherwise been agreed between the Parties.
9 PERSONAL DATA
9.1 This Clause 9 as well as Appendix 2 (Data Processing Agreement) and Appendix 3 (Joint
Controller Agreement) are only applicable if either or both Parties are subject to the GDPR.
9.2 Talentium is a data controller for personal data processed for the purposes such as to enter
into and administer the Customer agreement including the customer relationship. Further
information about Talentium’s processing of personal data in the capacity of data controller
9.3
9.4
9.5
9.6
10
10.1
10.2
10.3
10.4
10.5
is provided in Talentium’s privacy notice for business customers, located on Talentium’s
website.
When Talentium processes personal data on behalf of the Customer within the scope of the
Services, the Customer is the data controller and Talentium is the data processor, as further
specified in and governed by Appendix 2 (Data Processing Agreement).
When Talentium and the Customer processes personal data for purposes and with means
jointly determined by Talentium and the Customer within the scope of the Services, the
Parties act as joint controllers, as further specified in and governed by Appendix 3 (Joint
Controller Agreement).
The Customer undertakes not to include and process sensitive personal data within the
Services.
Upon the expiry of the Agreement, the provisions of Clause 14.4 (Winding up the Services)
shall apply in regard to personal data where Talentium processes personal data on behalf of
the Customer or where the Parties are joint controllers for the processing of personal data.
CONFIDENTIALITY
Each Party (“Receiving Party”) undertakes, without limitation in time, not to disclose
confidential information that has been obtained from the other Party (“Disclosing Party”),
to a third party.
Talentium undertakes to only use confidential information for the purpose of maintaining
the Services. Talentium further undertakes to ensure that personnel and sub-contractors
have access to confidential information only to the extent necessary for Talentium to be
able to perform its obligations in accordance with the Agreement and applicable legislation.
Confidential information means every item of information, including Customer’s Data and
personal data, technical, commercial or of other kind, with the exception of:
a) Information which was independently developed by Talentium without reference to
Customer’s Data.
b) Information which is publicly known, or which becomes public knowledge in another
way than through a breach by the Receiving Party of this confidentiality undertaking;
c) Information which the Receiving Party can show has come to its knowledge in any
other way than via the Services;
d) Information which the Receiving Party received or may receive from a third party
without being bound by a duty of confidentiality in relation to the third party;
e) Information which the Receiving Party is obliged under mandatory law, court or
government order or binding stock exchange regulations to reveal to public
authorities.
In cases as referred to in 10.3 d) above, the Receiving Party does not have the right,
however, to disclose to third parties that the same information has also been received from
the Disclosing Party. Unless prohibited by law, the Receiving Party shall notify the Disclosing
Party of any legally binding requests for disclosure of confidential information held by the
Receiving Party.
The Receiving Party shall ensure that confidentiality, as set forth above, is observed and
maintained by entering into confidentiality agreements with employees or taking other
appropriate measures. The Receiving Party is also responsible for ensuring that engaged
sub-contractors and sub-contractors’ employees that participate in the performance of the
Services, or who are otherwise affected by the Services, sign confidentiality obligations on
equivalent terms in favour of the Disclosing Party.
11 LIABILITY FOR THE SERVICES
11.1 The Services are provided “as is” and “as available”, since the Services are based on AI and
include several different AI components, meaning that their function cannot be guaranteed.
11.2 In the event of faults in the Services for which Talentium is responsible, Talentium shall, use
commercially reasonable efforts to remedy the fault, if possible.
1.1 The Customer acknowledges that the Services are based on Third Party Software and that
Talentium does not take any responsibility towards the Customer for any infringement,
incident or failure due to such Third Party Software components or provision of services to
Talentium. To the extent such infringement, incident or failure would occur, Talentium’s
obligations are instead limited to reporting the infringement, incident and/or the failure to
the Third Party Software provider and implementing any potential solution from the Third
Party Software provider. Talentium shall also monitor that the Third Party Software provider
fulfils its obligations under the applicable agreement between Talentium and the Third Party
Software provider.
1.2 Unless as stated in this Clause, Talentium shall not have any other liability for faults or any
other non-performance of the Services.
12 FORCE MAJEURE
12.1 If Talentium’s performance of its obligations under the Agreement is failed or delayed due
to causes beyond Talentium’s reasonable control, including but not limited to war or warlike
situations, military mobilisation or military conscription of a similar scope, insurrection and
riot, terrorism, sabotage, lightning, strike or other labour disputes, fire, natural disaster,
epidemic, pandemic, break-down of datacentres, relevant technical infrastructure or
services, cybersecurity attack, public authority order, discontinuation of the supply of
energy, or circumstance comparable therewith, changes in or new regulations,
governmental actions, and/or faults or delays in services provided by a sub-contractor or a
Third Party Software provider due to such circumstances as are stated above, such
circumstances shall constitute grounds for release resulting in an extension of the deadline
for performance and release from liability to pay damages and other remedies.
12.2 If the performance of the Services in substantial respects is prevented for a period
exceeding one (1) month due to a circumstance stated herein, either Party shall have the
right to terminate the Agreement in writing, without incurring any liability for
compensation. When terminating the Agreement in accordance with this clause, Clause 14
(Winding up the Services) shall apply.
13 LIMITATION OF LIABILITY
13.1 Should a liability to pay damages arise, a Party's liability for damages is limited, per calendar
year, to a total sum equal to fifteen percent (15 %) of the paid annual fee for the Services in
question. A Party is not in any event liable for loss of profit or other indirect damage or loss.
Furthermore, a Party is not liable for the other Party's liability towards a third party, other
than as stated in Clause 7 (Intellectual Property Rights) or, as regards the Customer’s
liability, under Clause 8.3.
13.2 The limitation of liability in this Clause 13 does not apply in the event of personal injury and
liability in accordance with Clause 7 (Intellectual Property Rights) and 8 (Customer’s Data) or
in the event of intent or gross negligence.
13.3 Any claims for damages shall be submitted no later than six (6) months from the time the
damage occurred, however never later than three (3) months from the expiration or
termination of the Agreement.
14 WINDING UP THE SERVICES
14.1 Upon termination of the Agreement, the Customer is responsible for collecting any
Customer Data, as applicable, at the latest sixty (60) days from the termination of the
Agreement.
14.2 As an additional service and to a reasonable extent, Talentium shall assist Customer with
the transfer of Customer Data. Such request shall be made within the 60-day period
referred to in the previous paragraph.
14.3 After the expiry of such 60-day period referred to in this Clause 14, and unless otherwise is
required by law, Talentium shall delete Customer's Data, or in a different manner make it
inaccessible to the Customer, within a reasonable time but no later than twelve (12) months
from the expiry of the Agreement.
14.4 After expiry of the Agreement, Talentium shall delete or return personal data where
Talentium processes personal data on behalf of the Customer, to the Customer in
accordance with Appendix 2 (Data Processing Agreement). Where the Parties are joint
controllers, Talentium shall delete the personal data in accordance with Appendix 3 (Joint
Controller Agreement).
14.5 Talentium shall be entitled to reasonable compensation for work or additional costs under
this Clause 14 or any required investment in accordance with Talentium’s price list
applicable from time to time. The Customer's obligation to pay for an investment only arises
if the Customer requests such an investment.
14.6 Notwithstanding any of the above, Talentium has the right to delete Customer Data in
accordance with what is stated in Clause 8.4.
15 NOTICES
If not stated otherwise in this Agreement, notices or other communications shall be sent by
courier, registered mail, or email to the Party's contact person at the addresses specified by
such Party. Notices are deemed to have been received by the other Party:
a) at the time of delivery, if sent by a courier;
b) five (5) days after dispatch, if sent by registered mail;
c) at the time the electronic message arrived at the recipient's email address, if sent by
email.
16 CHANGES TO THIS AGREEMENT AND THE SERVICES
16.1 Talentium reserves the right to change this Agreement and the Services. Talentium may,
without prior notification to the Customer, make changes to the content of the Services
(including introducing or removing features or functionalities), the method of providing the
Services or the Agreement, provided that such change is not of more than minor
insignificance to customers in general.
16.2
17
18
18.1
18.2
19
19.1
19.2
19.3
19.4
Other significant changes shall be notified to the Customer via email or in another way
which is clear to the Customer before they enter into force. The changes enter into force
thirty (30) days after notification. In the event the Customer does not accept changes under
this Clause 16.2, the Customer shall terminate the Agreement in writing no less than seven
(7) days before the changes enters into force.
SEVERABILITLY
If any provision of the Agreement, or the application thereof, is deemed invalid, the
Agreement, or the provision as a whole, shall not be rendered invalid. The Parties shall,
instead, modify the Agreement or the provision, to the extent possible, in order to give
effect to the spirit of this Agreement. If the Parties cannot agree on a modification of the
invalid provision, the provision shall be deemed deleted and other provisions of the
Agreement shall remain in force.
TRANSFER OF THE SERVICES AND THE AGREEMENT
No Party may assign, pledge, or otherwise encumber this Agreement or any of its rights or
obligations under this Agreement without the prior written consent of the other Party.
However, Talentium may assign this Agreement to a group company, or in the case of a
merger, acquisition, or sale of substantially all the assets of Talentium, without the prior
written consent of the Customer.
Notwithstanding the foregoing, Talentium may assign the right to receive payment under
the Agreement without the prior written consent of the Customer.
GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement shall be governed by and construed in accordance with Swedish law,
without regard to its conflict of laws principles.
Any dispute, controversy or claim arising out of or in connection with this Agreement, or the
breach, termination or invalidity thereof, shall be finally settled by arbitration administered
by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).
The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines,
taking into account the complexity of the case, the amount in dispute and other
circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also
decide whether the Arbitral Tribunal shall be composed of one or three arbitrators.
The language to be used in the arbitration proceedings and all related documentation and
correspondence shall be English and the seat of arbitration shall be Stockholm, Sweden.