Terms and Conditions
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” – means the point or points where Talentium connects the Services to the internet unless the Parties have agreed otherwise.
“Agreement” – 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.
“Customer” – has the meaning set forth in the Master Service Agreement.
“Customer's Data” – 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.
“Trial Services” – has the meaning set forth in Clause 3.1 of the Master Service Agreement.
”Disclosing Party” – has the meaning set forth in Clause 10.1.
”Effective Date” – 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.
”GDPR” – 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).
”Talentium” – has the meaning set forth in the recitals of the Master Service Agreement and refers to Talentium AB.
“Master Service Agreement” – has the meaning set forth in the recital of the Master Service Agreement.
“Party” or “Parties” – has the meaning set forth in the recitals of the Master Service Agreement.
“Receiving Party” – has the meaning set forth in Clause 10.1.
“SCC” – means the Arbitration Institute of the Stockholm Chamber of Commerce.
“Services” – 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.
“Platform” – means Talentium’s recruitment platform as further defined in Clause 1.1 of the Master Service Agreement.
“Third Party Software” – 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.
”User” – means the Customer’s personnel, consultants or other parties or individuals who are authorised by the Customer to use the Services.
2. TALENTIUM’S OBLIGATIONS
2.1. 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.
2.2. 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.
3. THE CUSTOMER’S OBLIGATIONS
In order to enable for Talentium to perform its obligations under the Agreement, the Customer is responsible for the following:
3.1. 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.
3.2. The Customer’s Data, including backup of Customer's Data, unless otherwise follows from the Agreement.
3.3. 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.
3.4. The Customer shall notify Talentium immediately upon discovery of any infringements or attempted infringements that might affect the Services.
3.5. The Customer shall ensure that all Users will follow all applicable laws, guidelines and recommendations when using the Services.
4. THE CUSTOMER'S USE OF THE SERVICES
4.1. 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.
4.2. 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.
4.3. 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.
4.4. 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.
4.5. 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.
4.7. 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.
5. LIMITATION OF ACCESS TO THE SERVICEs
5.1. 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.
5.2. If Talentium exercises this right, Talentium shall notify the Customer unless prohibited by law, court order or administrative decision by a competent authority. Furthermore, 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.
5.3. 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.
6. 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.
7. 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.
7.1. TALENTIUM’S RESPONSIBILITY
7.1.1. 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.
7.1.2. 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.
7.1.3. 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.
7.1.4. 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.
7.1.5. 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.
7.2. THE CUSTOMER’S RESPONSIBILITY
7.2.1. 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 is provided in Talentium’s privacy notice for business customers, located on Talentium’s website.
9.3. 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).
9.4. 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).
9.5. The Customer undertakes not to include and process sensitive personal data within the Services.
9.6. 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.
10. CONFIDENTIALITY
10.1. 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.
10.2. 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.
10.3. 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.
10.4. 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.
10.5. 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. 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.
17. 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.
18. TRANSFER OF THE SERVICES AND THE AGREEMENT
18.1. 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.
18.2. Notwithstanding the foregoing, Talentium may assign the right to receive payment under the Agreement without the prior written consent of the Customer.
19. GOVERNING LAW AND DISPUTE RESOLUTION
19.1. This Agreement shall be governed by and construed in accordance with Swedish law, without regard to its conflict of laws principles.
19.2. 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”).
19.3. 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.
19.4. 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.