WHEREAS:

The services offered on this website are offered by Talentsquare SPRL, with company seat registered at Cour de la Copenne 12, 7181 Arquennes, Belgium, and with VAT number 0641.685.385. Talentsquare can be contacted on +32 2 203 41 66 and via the email address: [email protected].

Talentsquare has developed a web platform called “Talentsquare”, which offers services for both applicants looking for job opportunities (“Applicants“) and employers (“Employers“) looking for applicants. Through an integrated web-based platform, CVs of Applicants (“CVs“) can be submitted, verified and enriched in order to enable Employers to consult and compare CVs. This platform is referred to as the “Platform” or “Talentsquare” in the remainder of the Agreement. The Employer wants to make use of the Platform offered by Talentsquare. Talentsquare agrees to offer the Employer access to the Platform, subject to the terms of the Agreement.

These Employer Terms of Use together with the documents expressly referred to on it (including the online order form, Privacy Policy and Disclaimer), collectively referred to as the “Agreement”, tell you information about us and the legal terms and conditions on which we sell any of the Services listed on our website to you. This Agreement will apply to any contract between Talentsquare and Employer for the sale of Services to Employer. Please read this Agreement carefully and make sure that you understand it, before ordering any Services from our website.

PLEASE NOTE THAT BY ORDERING ANY OF OUR SERVICES, YOU AGREE TO BE BOUND BY THE AGREEMENT (AND THE DOCUMENTS EXPRESSLY REFERRED TO IN IT). If you refuse to accept this Agreement, you will not be able to order any Services from our site. You should print a copy of the Agreement or save them to your computer for future reference. The Agreement between us is only in the English language.


IT IS AGREED AS FOLLOWS:

1. DEFINITIONS

1.1 “Account” means the Employer’s personal account on the Talentsquare website;
1.2 “Agreement” shall have the meaning as set forth above in these Employer Terms of Use;
1.3 “Applicant” means any applicant for which a CV is uploaded to the Platform;
1.4 “Charges” shall mean, collectively, the charges described on the website and/or on the online order form, which shall include (without limitation) the License Fee, the cost of any additional Credits purchased by the Employer, the cost of any Consultancy and Other Services ordered by the Employer;
1.5 “Confidential Information” shall have the meaning as set forth in clause 8.1;
1.6 “Consultancy and Other Services” means the optional custom development-related services or other services that may be agreed between Talentsquare and Employer in writing; “Credit” shall have the meaning as set forth on the website; “Defect” shall have the meaning as set forth in clause 3.1;
1.9 “Deliverables” means the results of the Consultancy and Other Services;
1.10 “Employer Content” has the meaning as set forth in clause 6.2.3;
1.11 “First-line Support” means the first line of support provided to assist the Employer with the use of the Platform. First-line support will typically include answering basic questions, and guiding the Employer or its users through the functionality of the Platform;
1.12 “Force Majeure” means any cause beyond a Party’s reasonable control, such as acts of God, acts from authorities, war, fire, flood, explosion or civil commotion, telecom breakdowns (including “denial of service” attacks and similar unavailability of internet connections), strikes, failure of a third party, software bugs in third party software, industrial action, etc.;
1.13 “Help-desk Services” has the meaning as set forth in clause 3.5;
1.14 “Initial Period” has the meaning as set forth in clause 14.1;
1.15 “License” means the license for the Platform, as described in clause 10.1.1;
1.16 “License Fee” means the applicable license fee for the chosen Subscription Level, exclusive of VAT, which shall be paid by the Employer;
1.17 “Means of Access” has the meaning as set forth in clause 6.1.2;
1.18 “Parties” means both Talentsquare and the Employer, and “Party” means either Talentsquare or the Employer, as the context indicates;
1.19 “Platform” has the meaning as set forth in the recitals of these Employer Terms of Use;
1.20 “Platform Services” means the Services relating to making available the Platform to the Employer. Which Services are included in the Platform Services, depends on the Subscription Level selected by the Employer, as set forth in clause 2.1.1;
1.21 “Privacy Policy” means the privacy policy for registered users (available at http://www.talentsquare.com/privacy-policy-applicants-employers-referees/), which is an integral part of the Agreement;
1.22 “Second-line Support” means support services with respect to the Platform that are not handled by first-line support (for example, due to the complexity involved or the lack of information of first-line support operators);
1.23 “Services” means, collectively, (i) the Platform Services; (ii) the Support Services; and (iii) the Consultancy and Other Services;
1.24 “Specifications” means the specifications of the Deliverables, as agreed between the Parties in writing;
1.25 “Subscription Level” shall have the meaning as set forth in clause 2.1.1. The Subscription Level selected by the Employer is indicated on the online order form;
1.26 “Support Services” means the services related to the support for the Platform, as described in clause 3;
1.27 “Term” means the term of the Agreement, as indicated in clause 14;
1.28 “Unavailability” means that the Platform is unresponsive or otherwise fails to respond to user requests;
1.29 “Usage Guidelines” means the document available on the online terms of use, which sets forth how the Platform and the Platform Services are to be used by the Employer. The Usage Guidelines may be amended from time to time by Talentsquare;
1.30 “User” means anyone making use of the Platform through the Employer’s subscription to the Platform. The User may be the Employer himself (for its own professional use) or any other physical persons (e.g. the Employer’s employees, consultants, assignees and agents) or job titles, applications, divisions, departments, subsidiaries, etc. for which the Employer requests the use of the Platform;
1.31 “Working Days” means all days excepting Saturdays, Sundays and public holidays in Belgium;
1.32 “Working Hours” means 8:00 to 17:30 on a Working Day.
1.33 Talentsquare will, throughout the Term of the Agreement:
1.33.1    provide the Platform Services to the Employer, as further described in clause 2;
1.33.2    provide the Support Services, as further described in clause 3;
1.33.3    if so agreed between Parties in writing, provide the Consultancy and Other Services, as further described in clause 4 and in the agreement between the Parties.


2. PLATFORM SERVICES

2.1 General

2.1.1 The Employer shall choose which subscription level (“Subscription Level”) to subscribe to during the Term. The credits and Services rendered within each of those Subscription Levels are set forth on the online order form and on the relevant information page on the website.
2.1.2 Employer has the right to upgrade (i.e. add more functionality) or downgrade (i.e. deduct functionality) the Subscription Level chosen on the online order form. An upgrade of the Subscription Level will be effective as soon as the payment for the upgraded Subscription Level has been received. A downgrade will become effective after the Term of the payment for the former Subscription Level has expired. In both cases, the Term of the Agreement will recommence as from the moment of the downgrade or upgrade becoming effective. A request to upgrade or downgrade is done through the Account settings of the Employer or upon any other written request issued by the Employer to Talentsquare and as accepted by Talentsquare.
2.1.3 The Employer agrees that all data uploaded to the Platform (in particular all CVs), will be processed by each Party in accordance with the Privacy Policy.
2.1.4 The Charges for the Platform Services are dependent upon the Subscription Level chosen, and are set forth in clause 11 and will be indicated on the online order form and on the relevant information page of the website which Employer acknowledges having consulted.
2.1.5 Without the approval of the Employer, Talentsquare shall have the right at any moment to (i) activate a new or improved version of the Platform; (ii) add additional functionality to the Platform; (iii) to modify internal or external functioning of the Platform, provided similar functionality is kept; or (iv) move its servers or networks to other locations or data centers, within or outside the European Union. Talentsquare shall undertake reasonable efforts to ensure when performing such actions, that the impact on the use for the Employer and its Users is limited.


2.2 Service levels
2.2.1 During the Term, Talentsquare shall use all commercially reasonable efforts to ensure that the Platform (i) is available to the Employer 99.5% (not including any scheduled maintenance) of the time in any calendar month; and (ii) shall have reasonable performance and response timing. The Employer recognizes, however, that this availability, performance and response timing is subject to a variety of interdependent factors (such as the availability of telecommunication links, the interaction between software of various parties, network congestion on the Internet, etc.), which are substantially out of the control of Talentsquare.
2.2.2 The Employer acknowledges that the access to and use of the Platform may be suspended from time to time due to maintenance. To the extent possible, Talentsquare shall schedule planned downtime outside working days.
2.2.3 With respect to versions of the Platform that are made available by Talentsquare as a “beta”, “pilot” or testing version, the Employer acknowledges and accepts that: (i) such version of the Platform is made available “as is”, and likely contains errors; (ii) none of the warranties set forth in this Agreement apply; (iii) all quality levels and warranties imposed by law are excluded to the maximum extent allowed by law; and (iv) Talentsquare shall not be liable for any contractual or extracontractual damage caused by such Platform, to the maximum extent allowed by law.

3. SUPPORT SERVICES

3.1 Talentsquare will, during the Term, take all reasonable commercial measures within reasonable limits for making the necessary correction of any reproducible non-conformity of the Platform (“Defect”).
3.2 The correction of Defects will, at Talentsquare’s sole discretion, consist in the following remedial service: (i) provision of a workaround; (ii) temporary correction (patches); (iii) correction via delivery of a new version; or (iv) adaptation of the documentation without reducing the functionality of the Platform.
3.3 The Employer shall closely co-operate with Talentsquare in order to allow Talentsquare to provide the Support Services, such as (but not limited to): (i) report problems timely and according to the procedure communicated by Talentsquare; (ii) provide sufficient documentation and information to enable Talentsquare to investigate and, if required, to reproduce the problem; (iii) provide reasonable assistance to Talentsquare in diagnosing the problem; or (iv) provide Talentsquare with access to its installation for remote diagnosis.
3.4 The Support Services do not cover any intervention resulting from any reason not assignable to the Platform, such as (but not limited to): (i) Defects resulting from erroneous, improper, non-authorised or unsupported use of the Platform; (ii) Defects resulting from a fault of the Employer or any third party; (iii) interventions resulting from an accident, fire, natural physical disaster, hardware failure and in general any reason not associated with the Platform; (iv) Defects resulting from the interfacing with other software; and (v) recovery of lost or corrupted data.
3.5 Talentsquare shall provide Helpdesk Services, which consist of First-line Support and/or Second-line Support. The Helpdesk Services can be reached by the technical contact person (as indicated on the online order form) either by email: [email protected] or, if applicable, by telephone reachable at +32 2 880 40 86.
3.6 The Subscription Level shall indicate whether the Helpdesk Services provided by Talentsquare are accessible by telephone. If such is the case, Support Services will be available during Working Hours. E-mails will be answered within two (2) Working Days.


4. CONSULTANCY AND OTHER SERVICES

4.1 If Consultancy and Other Services are ordered by the Employer, this clause 4 shall apply.
4.2 Talentsquare shall use all reasonable endeavours to develop and deliver the Deliverables in accordance with the Specifications and generally applicable industry standards.
4.3 The Employer shall provide Talentsquare with any complete and accurate information necessary or useful to provide the Consultancy and Other Services. Relevant assumptions, specific obligations for the Employer, and required software, hardware, facilities and other items to be provided by the Employer, may be set out in writing between the Parties. The Employer acknowledges to have been properly informed of the conditions of intervention of Talentsquare, and was given the opportunity to ask all the required questions.
4.4 The Employer shall cooperate with Talentsquare in the performance of the Consultancy and Other Services, inter alia by providing Talentsquare with reasonable facilities and timely access to data, information and personnel of the Employer. The Employer acknowledges and agrees that Talentsquare’s performance is dependent upon the timely and effective satisfaction of the Employer’s responsibilities hereunder and timely decisions and approvals of the Employer in connection with the Consultancy and Other Services. Talentsquare shall be entitled to rely on all decisions and approvals of the Employer.
4.5 Talentsquare will use all reasonable endeavours to achieve completion of the Consultancy and Other Services in accordance with any project plan agreed with the Employer, but all dates will be treated as target dates only and time will not be of the essence, unless otherwise agreed in the annexes. All dates will be extended by a reasonable period if any delay or stoppage is caused by any act or omission of the Employer.
4.6 Upon completion of the Deliverables, if relevant for the Consultancy and Other Services concerned and if agreed between the Parties, Talentsquare shall make the Deliverables available to the Employer for testing. The Employer shall then perform acceptance tests and verify whether the Deliverables comply with the Specifications.
4.6.1 In case a noncompliance is detected by the Employer, the Employer shall notify Talentsquare and state in sufficient detail how the Deliverables did not conform to the Specifications. Talentsquare shall then use its reasonable business efforts to correct any deficiencies in the Deliverables and shall require the Employer to re-run the acceptance tests.
4.6.2 When the acceptance tests indicate that the Deliverables comply with the Specifications, the Employer shall notify Talentsquare thereof in writing. This event marks the end of the Acceptance Procedure and constitutes the formal acceptance of the Deliverables.
4.6.3 Any noncompliance of the Deliverables which is detected after the formal acceptance of the Deliverables or after the Deliverables have been used in a production environment, shall be corrected at the then current rates of Talentsquare and shall be invoiced separately.
4.7 The modification of the Consultancy and Other Services requires the agreement of both Parties, specifying the modifications or the effects (in particular technical and financial). Until such agreement, Talentsquare shall continue its Consultancy and Other Services in compliance with the Agreement in force.
4.8 Clause 2.2.3 also applies, mutatis mutandis, to “beta” / testing versions of any Deliverables.


5. EMPLOYER OBLIGATIONS

5.1 Means of Access
5.1.1 In order to use the Platform, the Employer shall create an account (“Account”) on the website in order to receive a username and password. The Employer warrants that the information it provides in the Account shall be true and accurate, and shall be promptly updated in case of changes. A login is personal and a separate login for each User must be requested by the Employer and must be approved by Talentsquare.
5.1.2 The Employer undertakes to comply strictly with the appropriate procedures regarding access to the Platform using the Means of Access. The Account, username and password (“Means of Access”) are strictly personal and the Employer is responsible for the safeguarding, confidentiality, security and appropriate use of the Means of Access by him and its Users, and undertakes to take all steps to prevent any unauthorised third party from gaining knowledge and making use thereof. The Employer agrees to indemnify and hold harmless Talentsquare against any and all claims or demands from third parties arising from the dissemination by the Employer of incorrect information about the Employer and/or Users.
5.1.3 The Employer will notify Talentsquare immediately of the loss, theft, breach of confidentiality or any risk of misuse of the Means of Access. The Employer is fully and unconditionally responsible for any use of the Platform, as well as for any detrimental consequences that may arise directly or indirectly therefrom, until the time that such notification is made. If Talentsquare has any reason to suspect that the confidentiality and/or security of the Means of Access has been breached, Talentsquare may, without prior notice, suspend access to the Platform, at its sole discretion on an Employer or User level.


5.2 Use of the Platform
5.2.1 The Employer shall use the Platform, and shall ensure that its Users use the Platform in accordance with the terms, conditions and limitations set forth in the Agreement and shall not (and shall ensure that its Users shall not): (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party, unless explicitly allowed by this Agreement; (ii) interfere with or disrupt the integrity or performance of the Platform, or the data contained therein; or (iii) attempt to gain unauthorized access to the Platform, or related systems or networks of Talentsquare.
5.2.2 The Employer represents and warrants that its use of the Platform shall be in accordance with the Agreement, including the Usage Guidelines, as well as any applicable laws and regulations (in particular, but not limited to, Belgian and European data protection legislation, when applicable). Verbal, physical, written or other abuse (including threats of abuse or retribution) with respect to any Talentsquare customer, employee, member, director, officer or vendor will result in immediate Account termination.
5.2.3 The Platform may only be used to transmit and store CVs, files associated with the process of hiring an Applicant, job descriptions and comments with respect to the foregoing (all of the foregoing referred to herein as “Employer Content”). Employer may not upload advertisements or any other materials that do not fall within the definition of “Employer Content” or transmit unsolicited information, materials or data (including, without limitation, “spam” messages). Employer understands that the Service can be used for transmission of Employer Content, and that during processing, Employer Content may be transferred unencrypted over the internet, and Employer consents to such unencrypted transmission.
5.2.4 The Employer warrants not to give any incorrect or incomplete information as to its own capacity and to promptly inform Talentsquare of any modification thereof.
5.2.5 The Employer warrants to notify Talentsquare immediately in the event of a malfunction of the Platform.
5.2.6 Throughout the Term and for a period of three (3) years after the Term, Employer shall not build or maintain a product or service that competes with the Platform.


6. Talentsquare WARRANTIES

6.1 Talentsquare warrants that: 6.1.1 it has the necessary skills, expertise and rights to perform its obligations under the Agreement;
6.1.2 it will perform the Services in a good and workmanlike manner; and
6.1.3 the Platform shall function substantially in accordance with its specifications, it being understood that small deviations will not constitute a breach of this warranty. The Employer recognizes, however, that all software contains bugs.


6.2 Except as otherwise provided in the Agreement, Talentsquare makes no warranties, whether express, implied, or statutory regarding or relating to the Platform or the Deliverables. Specifically, Talentsquare does not warrant that the Platform will be error free or will perform in an uninterrupted manner. To the greatest extent allowed by law, Talentsquare specifically disclaims all implied warranties of merchantability, fitness for a particular purpose (even if Talentsquare had been informed of such purpose) with respect to the same.

6.3 Talentsquare expressly disclaims any liability for any Defects which result directly or indirectly from (i) any use of the Platform or the Deliverables by the Employer in a manner not consistent with the terms agreed upon between the Parties, or (ii) any use of the Platform or the Deliverables by the Employer in conjunction with hardware or software not provided and/or not authorized by Talentsquare.

6.4 The Employer’s exclusive remedy for damage or loss arising from breach of the above warranties shall be, at Talentsquare’s option and at no cost to the Employer, to either adjust to the Platform or the Deliverables, or to provide a workaround, in order to address the error in a manner that provides the Employer with reasonably equivalent functionality as provided in the documentation. If none of these options are commercially practicable, Talentsquare shall refund the Charges paid for the (current license period of the) Platform or the Deliverables.

7. CONFIDENTIALITY

7.1 To the extent that a Party comes into possession of any proprietary or confidential information of the other party (“Confidential Information”), it agrees to use the Confidential Information of the other Party solely for the purposes of the Agreement, and will not disclose such Confidential Information to any third party without the other Party’s written consent. Talentsquare may, however, disclose Confidential Information to its related and affiliated entities, and either Party may disclose Confidential Information to its professional advisers and insurers.
7.2 Each Party shall maintain the Confidential Information of the other Party in confidence using at least the same degree of care as it employs in maintaining in confidence its own proprietary and confidential information, but in no event less than a reasonable degree of care.
7.3 Confidential Information shall not include information which: (i) has become publicly available, other than as a result of disclosure by the receiving Party; (ii) was disclosed to the receiving Party on a non-confidential basis from a source other than the disclosing Party, which the receiving Party believes it is not prohibited from disclosing as a result of an obligation in favour of the disclosing Party; (iii) is independently developed by the receiving Party; (iv) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by any law or regulation, or by applicable regulatory or professional standards; or; (v) is disclosed with the written consent of the disclosing Party.
7.4 Talentsquare has the right to use, on its own discretion, the Employer’s name as client reference to third parties.


8. LIABILITY

8.1 The Employer acknowledges and accepts that it is responsible for the actions and omissions performed by all Users making use of the Platform through the Employer’s subscription or Agreement.
8.2 The Employer undertakes not to use, and will see to it that its Users do not use the Platform to (i) download, send, or disseminate data containing viruses, worms, spyware, malware or any other similar malicious programs; or (ii) carry out any calculations, operations or transactions that may interrupt, destroy or restrict the functionality of the operation of the Platform or any program, computer or means of telecommunications. 8.3 The Employer is liable for and will hold harmless and indemnify Talentsquare against any damage, loss, costs or expenses that may arise as a result of the use of the Platform by the Employer or its Users in a manner that does not correspond with the Agreement and, in general, all applicable laws, decrees and other legal instruments.
8.4 Employer acknowledges that Talentsquare has no control over, and no duty to take any action regarding: which content Employer accesses via the Site; what effects this content may have on Employer; how Employer may interpret or use the content; or what actions Employer may take as a result of having been exposed to the content. Employer releases Talentsquare from any and all liability for Employer having acquired, used, relied on, acted upon (or not acquired) content obtained or obtainable through the website. Talentsquare makes no representations or warranties concerning any content contained in or accessed through website, and Talentsquare will not be responsible or liable for the accuracy, completeness, copyright compliance or legality of material or content contained in or accessed through the website.
8.5 The Employer acknowledges and accepts that a secure browsing environment is a prerequisite for gaining access to and using the Platform. Although Talentsquare will undertake all reasonable efforts so that the connection established between the Platform and the User’s browser are of a highly secure, state-of-the-art type, Talentsquare cannot be held liable for any insecurity caused by the Employer’s computer, browser, operating system, internet connection, firewall, network, etc. The Employer, and not Talentsquare, is responsible for updating any security-related aspect of its browsing environment, including applying patches, updating firewalls, installing and keeping up-to-date virus scanners, scanning for spyware, malware and other malicious code, etc.

9. INTELLECTUAL PROPERTY RIGHTS

9.1 Platform
9.1.1 Throughout the Term, and subject to the payment of the License Fee for the use of the Platform in accordance with clause 12, Talentsquare grants the Employer a personal, worldwide, non-exclusive, non-transferable, non-sublicenseable, royalty-free license (“License”) to use the Platform. Unless as explicitly agreed otherwise, Employer may not copy, modify, publish, transmit, upload, participate in the transfer or sale of, reproduce, create derivative works based on, distribute, perform, display, or in any way exploit, any of the content of the Platform, software, materials, or Service in whole or in part.
9.1.2 The Employer agrees to waive all intellectual property rights and proprietary rights (if any) regarding any CV submitted or modified by it or any enrichment data ordered by it (as further explained in the Privacy Policy). The Employer agrees that Talentsquare has the right to use (and allow others to use or consult) the CV on any website and for any CV-related service, until Applicant would explicitly withdraw the CV.
9.1.3 Employer acknowledges and agrees that if Employer uses any part of the Service to contribute Employer Content (as defined in clause 6.2.3), Talentsquare will have a non-exclusive, perpetual, worldwide, royalty-free, freely transferable right, under all of Employer’s intellectual property rights, to copy, cache, publish, display, perform, distribute, translate and store such Employer Content and to allow others to do so. Employer warrants, represents and agrees Employer has the right to grant Talentsquare the rights set forth above. Employer represents, warrants and agrees that it will not contribute any Employer Content that (a) infringes, violates or otherwise interferes with any copyright or trademark of another party or with any applicable laws and regulations, (b) reveals any trade secret, unless Employer owns the trade secret or has the owner’s permission to post it, (c) is libellous, defamatory, obscene, pornographic, abusive, indecent, threatening, harassing, hateful, offensive or otherwise violates any law or right of any third party, (d) contains a virus, Trojan horse, worm, time bomb or other computer programming routine or engine that is intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information.


9.2 Trademarks of the Employer
9.2.1 Throughout the Term, Talentsquare will receive a worldwide, non-exclusive right (sublicenseable to its affiliates) to use and modify any trademarks, trade names and branding material provided by the Employer in the framework of the Agreement for the purposes of the provision of the Services. The Employer warrants that it has all necessary rights and/or licenses to grant Talentsquare such license, or has acquired such rights and/or licenses.

9.3 Consultancy and Other Services
9.3.1 The Employer acknowledges that title to all intellectual property rights of the Deliverables developed by Talentsquare under the Agreement, including any derivatives, modifications, enhancements, versions, releases, or correction levels thereto, shall remain exclusively with Talentsquare or its licensors.
9.3.2 Subject to the payment of all Charges relating to the Consultancy and Other Services, Talentsquare will grant to the Employer a worldwide, perpetual, non-transferable, non-exclusive license (with no right to grant sub-licenses) to use and reproduce for its own internal use only all Deliverables, subject to any additional limitations set forth in writing between the Parties.
9.3.3 The Employer acknowledges that in the course of its performance of the Services, Talentsquare may use materials, know-how or methodologies proprietary to Talentsquare or a third party or Talentsquare may produce proprietary materials or methodologies that are not part of the Deliverables. The Employer agrees that it will not have nor obtain rights thereto, except pursuant to a separate written agreement on terms to be agreed and the Employer agrees to maintain the confidentiality of such items.

9.4 Indemnification
9.4.1 Subject to the limitations set forth in clause 13, Talentsquare shall hold harmless and defend the Employer against any claim lodged against the Employer on the basis that the Platform or the Deliverables infringes any author rights held by a third party in any country that is a signatory to the Berne Convention for the Protection of Literary or Artistic Works.
9.4.2 The Employer undertakes that Talentsquare shall be given prompt notice of any alleged infringement claim that is made against the Employer. Talentsquare shall have the right to defend any such claims and make settlements thereof at its own discretion and the Employer shall give such assistance as Talentsquare may reasonably require to settle or oppose such claims.
9.4.3 In the event that any such infringement occurs or may occur, Talentsquare may, at its sole option and expense, (i) procure for the Employer the right to continue using the Platform or the Deliverables or any infringing part thereof; or (ii) modify or amend the same (or the infringing part thereof), so that they become non-infringing; or (iii) replace the same (or the infringing part thereof) by other software of similar capability; or (iv) reimburse to the Employer the relevant License Fees paid up to a maximum of one year.

10. CHARGES

10.1 The Charges for each Subscription Level and for the Support Services are set forth on the online order form and the relevant information page on the website. Charges for Consultancy and Other Services are as agreed between the Parties.
10.2 There will be no refunds or Credits for partial terms (month, quarter, half-year, and full-year) of service, upgrade/downgrade refunds, or refunds for terms unused with an open Account unless outlined in a separate agreement between the Parties.
10.3 Any dispute regarding an invoice must be lodged with Talentsquare in writing within fifteen (15) days of the invoice date. Once this period has expired, the dispute will be considered as inadmissible and the invoice will be deemed to have been accepted irrevocably and in full.
10.4 The Employer accepts that Talentsquare has the possibility to send invoices electronically. The Employer acknowledges that it is responsible for the appropriate storage of the electronic invoices and for the fulfilment of all other legal requirements with respect to receiving electronic invoices.
10.5 Talentsquare registers access to Talentsquare Services for invoicing requirements and so any problems can be detected. It keeps a log up to date in which it only stores data relating to the use of the service provided. This log can be reproduced on paper or any other type of information medium. It provides evidence that access has been gained to Talentsquare Services, unless the Employer can prove the contrary. Electronic messages, connections, operations on the network and transactions between the Employer and Talentsquare shall be proven using the logs and transaction files kept electronically by Talentsquare. The Employer accepts the evidential value of this data. This capability of proof does not prevent the parties from each providing their own proof using permitted legal methods.

11. PAYMENT

11.1 The Employer shall pay Talentsquare the Charges described in clause 10. License Fees will be invoiced by Talentsquare in accordance with the Subscription Level chosen (monthly, quarterly, half-yearly or yearly). Consultancy and Other Services are invoiced separately by Talentsquare.
11.2 Talentsquare can index the applicable License Fee annually, three months prior to the anniversary of this Agreement, based on the following formula: Vn = Vo ( 0.2 + 0.8 Sn/So)
whereby:
Vn = the new License Fee
Vo = the previous License Fee
Sn = the index of the national wage costs (referteloonkost landsgemiddelde) as published by Agoria (the Belgian trade association of technology companies) three months before the anniversary of this Agreement
So = the index of the national wage costs (referteloonkost landsgemiddelde) as published by Agoria three months before the previous indexation.
11.3 A valid credit card is required for subscribing to a Subscription Level. Licence Fees are charged in advance, are non-refundable and are invoiced and deducted from the credit card with the periodicity as stated in the order form (monthly, quarterly, half-yearly or yearly). Charges for Consultancy and Other Services are charged in accordance with what has been agreed between the Parties, in absence of which the Charges will be payable in advance.
11.4 For any upgrade in Subscription Level, Employer’s credit card provided will automatically be charged at the point in time when Employer upgrades. Downgrading the Service will not result in any refund and may cause the loss of access to content, features, or capacity of the Account. Talentsquare shall not be liable for any such loss.
11.5 In case the Employer does not have a valid credit card, a bank transfer can be performed upon agreement and reception of an invoice or purchase order sent by Talentsquare. A minimum of half-year usage of the Service has to be requested in order for the purchase order to be considered. Downgrading the Service will again not result in any refund and may cause the loss of access to content, features, or capacity of Employer’s Account. Talentsquare shall not be liable for any such loss.
11.6 In the event the Employer purchases additional credits, Talentsquare will invoice the Employer on the date of such purchase (or any later date as Talentsquare sees fit).
11.7 Unless payment has already been made (e.g. in case of online payment of the License Fee), all invoices are payable thirty (30) days after the invoice date. In case of late payment, a monthly interest of 1% will be charged automatically and without prior notice. In case of non-payment (two (2) months after due date) the invoice will be, after reminder by registered mail, raised by 15%, on top of legal costs.
11.8 In the event of any failure of the Employer to timely make the payments indicated above (e.g. in case insufficient funds are provided on the bank account of the Employer), then Talentsquare can, without in any way affecting its other rights hereunder: (i) demand that all outstanding invoices become due at once; (ii) suspend or terminate the Services, including the License; or (iii) only allow Employer to access the basic non-paying Services (without Employer being entitled to any compensation or damages).
11.9 Except if otherwise indicated, the amounts payable to Talentsquare under this Agreement do not include: (i) any sales, use, excise, import or export, value added or similar tax; (ii) the cost of any bug fixes or software maintenance after the acceptance of the Deliverables in accordance with clause 4 (unless if such bug fixes or software maintenance is included in the Support Services); (iii) costs of travel and lodging; or (iv) out-of-pocket expenses incurred by Talentsquare.

12. RISK ALLOCATION

12.1 Without prejudice to clauses 13.2 and 13.3, Talentsquare’s contractual and extra-contractual liability is limited to the aggregate amount of the payments made by the Employer to Talentsquare in the twelve (12) months preceding the incident that gave rise to the liability.
12.2 In no event will Talentsquare be contractually or extracontractually liable for any indirect or consequential damage, such as (but not limited to) loss of profits, loss of anticipated savings, loss of business, loss of opportunity, loss of revenue, loss of time, loss of goodwill or injury to reputation, or loss of or harm to data (including corruption to and reinstatement of any data), third party claims or losses suffered by third parties.
12.3 This clause 13 shall not apply in case of fraud or wilful intent.

13. TERM AND TERMINATION

13.1 The Agreement commences as from the moment of Employer submitting the online order (“Effective Date”) and shall remain in effect for a period as chosen by the Employer on the online order form (e.g. a month, a quarter, half-year or year) (the “Initial Period”).
13.2 After the Initial Period, this Agreement shall be subject to automatic renewal for subsequent periods of the same duration as the Initial Period, until this Agreement is terminated by either Party as described below.
13.3 Either Party may terminate this Agreement for cause, without involvement of a judge in case (i) the other Party commits a material breach of this Agreement that is not cured within thirty (30) calendar days (or cannot be cured at all) after notice thereof from the non-breaching Party, whereby any infringement of the License shall in any case be considered as a material breach; or (ii) in case of cessation of payment, bankruptcy or liquidation of the other Party.
13.4 Employer can terminate its Account for convenience. Employer is solely responsible for properly cancelling its Account. An email or phone request to cancel Employer’s Account is not considered cancellation. Employer can cancel its Account at any time by clicking on the Account link (visible after Employer logs in) in the navigation bar at the top of the screen and finding the “My Settings” link, followed by the “Want to close your account?” link. This is the only way in which Employer may cancel its Account, without prejudice to clause 13.3. All of Employer’s content will be immediately deleted from the Service upon cancellation. This information cannot be recovered once Employer’s Account is cancelled. If Employer cancels its Service before the end of the current paid up period (month, quarter, half-year, and full-year), such cancellation will take effect immediately and Employer will not be charged again, nor will Employer receive a refund for the unused portion of the payment period. 13.5 Talentsquare, in its sole discretion, has the right to suspend or terminate an Employer’s Account and refuse any and all current or future use of the Service for any reason at any time. Such termination of the Service will result in the deactivation or deletion of Employer’s Account and Employer’s access to its Account, and the forfeiture and relinquishment of all content in Employer’s Account. Talentsquare reserves the right to refuse service to anyone for any reason at any time.
13.6 In the event the Agreement expires or is terminated for convenience then, without prejudice to the other rights and obligations that may apply to either Party, the Employer shall pay the amounts due up to the time of termination.
13.7. In the event the Agreement expires or is terminated, the Employer has the right to have their information deleted from the system, without further dispute.

14. CHANGES

14.1 In view of the service provision by Talentsquare and also given the further development of the Platform, the Agreement (including the contractual stipulations, the rates, etc.) may be subject to modifications by Talentsquare.
14.2 In the event of such changes, the Employer will be informed of the change. During a period of one (1) month after the announced change, the Employer has the opportunity to terminate the Agreement, without such termination giving rise to the reimbursement of monies already paid. If the Employer does not exercise this termination option within the aforementioned period, the Employer will be deemed to have accepted the modification.

15. MISCELLANEOUS

15.1 In case of any inconsistency between the online order form and the rest of the Agreement, the provisions of the online order form shall take precedence.
15.2 The Agreement supersedes any previous agreement between the Parties relating to the subject matter thereof. Neither Party’s general or specific terms & conditions shall apply.
15.3 If any (application of a) provision of the Agreement is declared invalid, unenforceable or void, then: (i) such will not have the effect of invalidating or voiding the remainder of the Agreement; and (ii) the Parties will amend the affected provisions in order to render it valid, legal and enforceable while preserving its intent, to the maximum extent possible.
15.4 The failure of either Party to exercise in any respect any right provided for in the Agreement shall not be deemed a waiver of any further rights hereunder.
15.5 The clauses of the Agreement that by their nature may reasonably be presumed to survive any termination or expiration of the Agreement (in particular, without limitation, clauses 9, 10 and 13), shall survive any termination or expiration hereof.
15.6 The Agreement does not create a partnership or joint venture between the Parties to it. Except as expressly provided in the Agreement, neither Party will enter into or have authority to enter into any engagement or make any representations or warranties on the other Party’s behalf, nor will they seek to otherwise bind or oblige the other Party in any way.
15.7 Upon Employer’s request, Talentsquare can further inform the Employer on the languages in which the Agreement can be concluded, the different technical steps to come to the conclusion of the Agreement, any technical means to trace and correct faults in the online order form before placing the order, and whether Talentsquare archives and makes available the Agreement. Employer warrants and acknowledges that it does not depend on this information to conclude the Agreement.
15.8 After the order being placed online by the Employer, a confirmation email with a summary of the order will be sent to the Employer, including an invoice for the Services ordered.
15.9 Neither Party shall be liable to the other for any delay in, or failure of, the performance of its obligations under the Agreement arising from Force Majeure. The Party affected by Force Majeure shall as soon as practicable, send to the other a written notice setting out the circumstances of the event and its anticipated effect, and shall use all reasonable endeavors to minimize the effect of any such circumstances. If any delay or stoppage arising out of an event of Force Majeure continues for a continuous period of six (6) months, either Party may terminate the Agreement with immediate effect on giving written notice to the other, and neither Party shall be liable to the other for such termination.
15.10 The Agreement is personal to the Employer and neither the Agreement nor any of the Employer’s rights or obligations hereunder shall be assigned, sublicensed, sold or otherwise transferred by the Employer without Talentsquare’s prior written consent. Talentsquare reserves the right to assign all or part of the Agreement at any time to any affiliate (as defined in article 11 of the Belgian Company Code) which can execute the obligations under the Agreement, subject to providing the Employer a written notice of such assignment.
15.11 Employer agrees that Talentsquare may provide to Employer required notices, agreements and other information concerning the Service electronically. While refunds will be handled promptly when warranted, by using the Service Employer also agree that Talentsquare is not responsible for valid charges incurred as the result of failed electronic delivery of email messages to the address the Employer has provides, either by the fault of Talentsquare or another third party.
15.12 Unless otherwise agreed between the Parties, (i) both Parties may provide marketing exposure by issuing a press release announcing the agreement between both companies, mentioning the cooperation on their website. The content of the press release will be approved by both Parties before it is made public; and (ii) each Party is allowed to use the other Party’s name and logo for use on its public website or in a reference list after written approval by the other Party. Employer also agrees that a “powered by Talentsquare” graphic or text link can be included with the job listings of Employer unless Employer chooses to disable or hide this fact.
15.13 The Agreement shall be subject to Belgian law, and the courts of Brussels shall be competent to handle any dispute that arises in relation to the Agreement.