These Terms and Conditions apply to all current and future offers and agreements in connectionwith the provision of Services (of whatever nature) by GeniusMinds.
Deviations from and amendments to the Terms and can only be agreed upon in writing.
Applicability of any terms and conditions of Client is explicitly excluded.
In these Terms and Conditions, the following terms have the following definitions:
❖ Affiliate: In relation to any person or entity, a party that is affiliated in a group with Client(as referred to in Section 2:24b of the Dutch Civil Code) or a party who is a subsidiary ofthe other (as referred to in Section 2:24a of the Dutch Civil Code).
❖ Agreement: The agreement entered into or to be entered into by and between Client andGeniusMinds in respect of the Services.
❖ Candidate: Every natural person (m/f) who is introduced to Client as a result of GeniusMinds' efforts.
❖ Client: Any natural person or legal entity that request GeniusMinds for an offer, receivesan offer from GeniusMinds or enters into an agreement with GeniusMinds
❖ Content: All data and information in a recruitment marketing campaign, such as but notlimited to job descriptions, metadata regarding a recruitment marketing campaign (such aswork location, salary, whether it concerns a full-time or a part-time position), brandguidelines, logos, and/or banners.
❖ Employment Agreement:Any agreement between a Candidate and Client or third party toperform activities for or on behalf of Client (as an employee, self-employed person (with orwithout personnel) or in any other capacity, for a definite, specifiable or indefinite period oftime.
❖ GeniusMinds: Genius Innovation Block B.V. a company incorporated under the laws of theNetherlands, with Its offices at IJburglaan 291, 1091ZJ in Amsterdam and registered in thetrade register of the Dutch Chamber of Commerce under number 72728582.
❖ Introduction: The verbal and/or written provision of any information concerning a potentialCandidate.
❖ Commission: The fee that GeniusMinds charges Client and which is payable by Client toGeniusMinds for the provision of services.
❖ Longlist: By GeniusMinds selected Candidate summery and if agreed matched againstgiven persona’s candidates.
❖ Service(s): Any service(s) to be provided by GeniusMinds either directly or indirectly (forexample through a website, platform, (third party) software or otherwise) such as but notlimited to software and website development, software licencing, software as a service(SaaS), maintenance and support, secondment, and advice and consultancy relating tosuch services. This definition also includes the provision of and making available ofsoftware and software licenses to Client by GeniusMinds or by third parties.
❖ Terms and Conditions:These general terms and conditions used by GeniusMinds
All offers made by GeniusMinds are non-binding (vrijblijvend) and subject to contract.
Client Is responsible for and warrants that data and information provided by it, is complete,accurate and correct.
Performance of Services
GeniusMinds will perform the Services with care to the best of its ability, where applicable inaccordance with the Services Agreement and procedures agreed in writing with Client, as thecase may be.
GeniusMinds will perform the Services on the basis of an obligation to use best endeavours(inspanningsverbintenis).
GeniusMinds is not obliged to comply with any of Client's instructions unless otherwise agreedupon In the Service Agreement.
All costs and disbursements made by GeniusMinds in relation with the provision of its services,are for the account of Client.
Commission & Payment
Client and GeniusMinds will agree upon the Commission payable to GeniusMinds in the service agreement.
Client Is obliged to reimburse GeniusMinds for costs incurred by the performance of the service agreement.
All Commissions payable to GeniusMinds are exclusive of VAT (omzetbelasting) and must bepaid in Euros.
GeniusMinds' Commissions are due and payable (opeisbaar) within 15 days after the date of the concerning invoice.
Client Is not entitled to set off (verrekenen) or suspend (opschorten) payments.
In case Client does not or not timely pay the due Commissions to GeniusMinds, Client is obligedto pay the statutory interest (wettelijke handelsrente) over and in addition to the amount due.
Term & Termination
Unless otherwise agreed in the Service Agreement, the Service Agreement Is entered into for an indefinite period of time.
Unless otherwise agreed in the Service Agreement, the Service Agreement can be immediately terminated by GeniusMinds.
Unless otherwise agreed in the Service Agreement, the Service Agreement can be terminated by Client, provided that at least 6 months written notice is given.
This clause applies in case GeniusMinds provides Services to Client relating to development of software, website(s) or SaaS.
If specifications or design of the software or website to be developed have not already been provided prior to entering into the Agreement, GeniusMinds will specify the software, website or SaaS to be developed and the way the development is to be carried out.
GeniusMinds may require that the Client agrees to the specifications or design in writing prior to commencement of the Services.
The client will enable GeniusMinds to work on Its location(s) and premises outside office hours.
Software, website or SaaS development Services do not entail maintenance and support of the concerning software and/or website.
This clause applies in case the Services entails the provision of and making available of software and/or software licenses to Client by GeniusMinds or by third parties. Client will not be the owner of the software or any Intellectual property rights in relation thereto.
GeniusMinds will make the agreed software available to the Client for use for the duration of the Service Agreement on the basis of a license for use. GeniusMinds and Client acknowledge that the Agreement does not constitute a purchase agreement and is never deemed to be a purchase agreement, even in case the software is specifically developed for Client at Client'scosts.
The software license is non-exclusive and may not be transferred, pledged or sublicensed. The software and software licence may only be used by Client and for Client's own purposes only.
GeniusMinds is only obliged to make available the object code of the software, not the source code. The software license also applies only to the object code.
GeniusMinds Is not obliged to maintain the software or to provide support in relation to the software.
GeniusMinds will deliver the software on a data carrier.
GeniusMinds will only install the software if and to the extent agreed upon with Client.
Client will accept the software in the state that it is in when delivered or, as the case may be, installed in the state that it is when installed by GeniusMinds, with all visible and invisible errors and defects.
Client is not allowed to change or amend the software.
If GeniusMinds makes third-party software available to Client, the licence terms of the third parties concerned shall apply in the relationship between the GeniusMinds and Client with respect to the software and software licence(s) instead of the provisions of these Terms andConditions that differ from those licence terms, provided that the applicability of the licence terms of the third party concerned was reported to Client by GeniusMinds supplier in writing. If, as the case may be, the terms of third parties referred to above are deemed not to apply or are declared inapplicable in the relationship between Client and the GeniusMinds, the provisions of these Terms and Conditions apply in full.
Software as a Service
This clause applies in case GeniusMinds provides Services to Client relating to software orSoftware as a Service (SaaS).
GeniusMinds only provides SaaS on the instructions of the Client. The client may not allow third-parties to make use of the SaaS provided by GeniusMinds.
If GeniusMinds performs work or services relating to the data of Client, its employees or users pursuant to a request or order of a government agency or in connection with a legal obligation, all costs associated with this work or services will be charged to Client.
GeniusMinds is allowed to change the content or scope of the SaaS. If such changes result in a change of Client's current procedures, GeniusMinds will inform Client about the matter as soon as reasonably possible and the costs of this change will be borne by Client.
GeniusMinds may continue to provide SaaS using a new or modified version of the concerning software. GeniusMinds is not obliged to maintain, modify or add certain features or functionalities of the SaaS unless otherwise agreed upon in the Service Agreement.
GeniusMinds Is allowed to may temporarily put all or part of the SaaS out of operation for preventive, corrective or adaptive maintenance or other forms of service.
GeniusMinds is not obliged to provide a physical carrier to Client that contains the software.
GeniusMinds does not guarantee that the software made available and held in the context of the SaaS is free of errors and functions without interruption.
GeniusMinds does not guarantee that defects in software (that it has or has not developed itself)will be fixed. GeniusMinds is entitled but not obliged to install temporary solutions, program bypasses or problem-avoiding limitations in the software. If the software was developed on the instructions of Client, GeniusMinds may charge for the costs of fixing to Client in accordance with GeniusMinds usual rates.
Maintenance & Support
This clause applies in case GeniusMinds provides Services to Client relating to maintenance and support of software and ICT systems.
If GeniusMinds provides Services online, Client will timely ensure that proper ¡infrastructure and network facilities are in place.
Client will immediately report errors discovered in the software in detail. Following receipt of the report, GeniusMinds will strive to the best of its ability to fix errors and/or implement improvements in later, new versions of the software in accordance with its usual procedures.Depending on the urgency and GeniusMinds version and release policy. the results shall bemade available to Client in a manner and within a term determined by GeniusMinds.GeniusMinds is allowed to install temporary solutions, program bypasses or problem-avoiding limitations in the software. Client itself install, organize, parameterize and tune the corrected software or the new version of the software made available, and, if necessary, modify theequipment and operating environment used.
Client will provide all cooperation required by GeniusMinds, including temporarily ceasing use of the software and making a backup of all data.
If the maintenance and support work relates to software that was not supplied to the customer by the supplier, the customer, if GeniusMinds believes this ¡s necessary or desirable for the maintenance work, shall make the source code and the technical (development) documentation of the software, including data models, designs, changelogs and the like, available. Client guarantees that it is entitled to make the aforementioned items available. Client grantsGeniusMinds the right to use and change the software, including the source code and technical(development) documentation.
The work performed by GeniusMinds does not affect Client’s own responsibility for managing the software, including checking the settings and the way in which the results arising from operating the software are used. Client will itself install, organize, parameterize and tune the software and support software required and, if necessary, modify the equipment, other software and support software and operating environment used in this regard, and effect the interoperability that it desires.
If it has been agreed that maintenance includes making new versions of the software available, they shall be made available at GeniusMinds’ discretion. Three months after an improved version has been made available, GeniusMinds is no longer be obliged to fix errors in the previous version and to provide support and/or perform maintenance work with respect to a previous version.
If the services provided by GeniusMinds include the provision of standby services, the GeniusMinds ensures that one or more staff members are available on the days and during the times specified in the Agreement. Client will, in this case, be entitled in the event of urgency to call in the support of staff members on standby if there ¡s a serious malfunction in the operation of the software. GeniusMinds does not guarantee that all malfunctions will be repaired speedily.
The maintenance and other agreed services as referred to in this chapter shall be performed as from the date on which the Agreement is concluded unless the parties have agreed otherwise in writing.
This clause applies in case GeniusMinds provides Services to Client relating to the secondment(detachering) of personnel.
During the term of the secondment, as well as 18 months after the termination of the secondment, Client Is not entitled to conclude any type of contract or agreement with the concerning secondee pursuant to which the concerning secondee pursuant to which the concerning secondee will work for Client or for any of its Affiliates or render any services to clients or any of its Affiliates.
When the prohibition in the aforementioned clause Is being breached by Client, Client must payan immediately due and payable penalty of EUR 35.000 to GeniusMinds.
Client will ensure that the secondee is provided with sufficient working space, ICT Infrastructure and other facilities needed to perform its work.
Expenses Incurred by the secondee are for Client's account and will be paid by Client within ultimately two weeks after the concerning receipts are provided by the secondee to the Client.
Client acknowledges that the secondee accrues holiday entitlements.
Client acknowledges the secondee's rights pursuant to the Dutch Work and Care Act (WetArbeid en Zorg) and pursuant to other applicable rules and regulations.
If the secondee is not available to Client for whatever (legitimate or illegitimate) reason, GeniusMinds is not liable or responsible for the damages or other consequences.
GeniusMinds is always entitled to replace the secondee on its own discretion.
This clause applies in case GeniusMinds provides Services to Client relating to recruitment(werving en selectie) of personnel.
If a Candidate introduced by GeniusMinds is (i) not hired by Client or if he rejects the employment Agreement offered by Client, and (ii) such Candidate is subsequently offered an employment Agreement Client within a period of 18 months following the date of the first introduction of the Candidate to Client, then Client will pay the agreed Commission to GeniusMinds.
If (i) Client introduces a Candidate selected for him by GeniusMinds to another person or company, and (ii) such Candidate is offered an Employment Agreement by (or collaborates with) said person or said company within a period of 18 months following the date of the first introduction of the Candidate to Client, then Client will pay the agreed Commission to GeniusMinds.
If Client decides to recruit or to collaborate with more than one of the Candidates Introduced by GeniusMinds then the Client must pay GeniusMinds Commission for each of the Candidatesthus hired.
The Client will inform GeniusMinds immediately of the decision to hire any Candidate(s)Introduced by GeniusMinds and of the conditions of the concerning contract with the Candidate.
The Candidate's transportation and other expenses incurred while going to an interview with clients are for the Client's account.
Client is responsible for all medical examinations and for all steps necessary in obtaining work permits or authorizations for the Candidate. Client also ensures that it is in perfect accordance with all applicable employment legislation and other rules and regulations.
GeniusMinds will use its best efforts to ensure the aptitude of the Candidates introduced to client and to maintain a high quality of service and integrity, but it does not guarantee expressively or implicitly the aptitude of the Candidates introduced to Client.
To the extent permitted under applicable law, GeniusMinds is not liable to Client for any damage, loss, expenses, disputes or spending suffered or incurred by Client in connection with the recruiting or hiring of Candidates by Client.
Client and GeniusMinds ensure that that all data and information received from the other party that the receiving party knows or should reasonably know is confidential, is kept secret. Information shall, in any case, be deemed to information shall, in any case, be deemed to be confidential if it has been qualified as such by one of the parties.
The aforementioned confidentiality obligation does not apply in case (i) a party is required to provide the data or information concerned to a third party in accordance with a court decision or statutory requirement, or (ii) if required for the proper performance of the Service Agreement.
GeniusMinds will not be liable for damages unless it is caused as a result of deliberate intent or recklessness on the part of GeniusMinds (or its management).
To the extent that liability cannot be excluded under Dutch law, any and all liability of GeniusMinds is limited to the amount paid, if any, under Its applicable insurance policies in the matter concerned. If the liability is not covered by GeniusMinds' insurance policies, then the liability will be limited to the maximum of the amount of commission which GeniusMinds has invoiced in respect of the Service Agreement in the 6 months period preceding the incident that caused GeniusMinds to be liable, with a maximum of EUR 10.000.
Not only GeniusMinds, but also all-natural persons and legal entities, both persons that are in any way whatsoever connected to GeniusMinds (including but not limited to employees, partners and directors of GeniusMinds) as well as third parties who have been appointed with regard to the performance of the Service Agreement, can rely on these Terms and Conditions.
Client fully indemnifies GeniusMinds for damages en costs as a result of amendments made to software used by Client.
Transfer of Rights
Client is not allowed to sell, transfer or pledge its rights vis-a-vis GeniusMinds to a third party. This clause has a property law effect (heeft goederenrechtelijke werking).
GeniusMinds is allowed to sell, transfer or pledge its claims to payment of amounts owed to a third party.
Client will comply with its obligations with regard to personal data (as defined by 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) and any applicable laws relating to data protection and privacy (the GDPR) in connection with its activities in connection with the Services and theAgreement.
Client acknowledged that the GDPR or other applicable rules and legislation may prescribe that will have to enter Into and consent to additional agreements or contracts with GeniusMinds. If client does not enter Into and consent to such additional agreements, GeniusMinds Is entitled to terminate the Agreement with immediate effect.
All intellectual property rights created pursuant to and in connection with the Agreement is owned by GeniusMinds. In case any such intellectual property rights would be, for whatever reason, owned by Client, Client will immediately and fully cooperate to transfer such intellectual property rights to GeniusMinds and execute all (legal) acts to effectuate such transfer.
If GeniusMinds envisages undertaking the transfer of any intellectual property right, such a commitment will only be undertaken expressly and in writing. If the parties agree in writing that an intellectual property right concerning software, websites, data, equipment, files or any other materials specifically developed for Client will be transferred to Client, such transfer will take place without prejudice to GeniusMinds' right or option to use and/or operate, either for itself or for third parties and without any restriction, the parts, general principles, ideas, designs, algorithms, documentation, works, programming languages, protocols, standards and the like on which the developments referred to are based for other purposes. The transfer of an intellectual property right will likewise take place without prejudice to the GeniusMinds' right to complete developments, either for itself or for a third party, that are similar to or derived from developments that were or are being completed for Client.
All intellectual property rights concerning software, websites, data, files, equipment and training, testing and examination materials, as well as other materials like analyses, designs, documentation, reports and offers, including preparatory materials in this regard, developed or made available to Client under the Agreement are held exclusively by GeniusMinds, its licensors or its suppliers. Client has the rights of use expressly granted under these Terms and conditions, the Agreement and the applicable rules and regulations. A right accorded to Clients is non-exclusive and may not be transferred, pledged or sublicensed.
Client is not allowed to remove or change any indication concerning the confidential nature of or concerning the copyrights, brands, trade names or any other intellectual property right concerning the software, websites, data, equipment, materials or files, or have any such indication removed or changed.
GeniusMinds may always take technical measures to protect equipment, data, files, websites, software made available, software to which Client is granted direct or indirect access, and the like in connection with an agreed limitation in terms of the content or duration of the right of use of these items. Client may not remove or bypass such technical measures or have such technical measures removed or bypassed.
Client guarantees that making equipment, software, material intended for websites, data, files and/or other materials and/or designs available to GeniusMinds for the purpose of use, maintenance, processing, installation or integration does not infringe any rights of third parties. Client fully indemnifies GeniusMinds against any claim of a third party based on the allegation that such making available, use, maintenance, processing, installation or integration infringes a right of that third party.
GeniusMinds is not obliged to perform data conversion unless doing so has been expressly agreed in writing with Client.
These Terms and Conditions together with the Agreement comprise the entire agreement between Client and GeniusMinds and supersede all previous agreements, verbal or written, entered into by parties and relating to the concerning subject matters.
If a provision in these Terms and Conditions or the Agreement entails a breach of the law, is entirely or partially invalid, is unfeasible, or is proclaimed unfeasible, such provision will not be considered a part of these General Terms of the Agreement, without affecting the legality and feasibility of the other provisions. Client and GeniusMinds will make every effort to immediately draw up and agree on a lawful replacement provision in consultation and in good faith, as the case may be.
GeniusMinds acts as a service provider and is not entitled to commit Client or a Candidate, as the case may be.
Client hereby acknowledges and consents to GeniusMinds making use of any of Client’s (trade)names and logos for marketing purposes.
GeniusMinds is entitled to amend these General Terms and Conditions. An amendment will also apply to any Agreement(s) concluded prior to the time of the amendment. An amendment will not become effective before 14 (fourteen) days have passed since notice thereof to Client.In case of disputes arising from or relating to the Agreement of these Terms and Conditions, parties must first try to reach an out-of-court settlement, notwithstanding the right to take precautionary measures or obtain interim relief.
Applicable law & Competent court
The GeniusMinds General Terms and Conditions and every Agreement contract are governed by the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods has excluded form applicability.
Any disputes arising from or in connection with the parties’ legal relationship to which these GeniusMinds General Terms and Conditions apply will, exclusively and in the first instance, be put before the competent court of Amsterdam.
Client is fully responsible for the content of the messages being sent through the WhatsApp Business Account by Client, the lawfulness of the messages, the identity of the relevant end-user, and guarantees that these comply with applicable law. The Client will not send any unsolicited traffic, nor other unethical, illegal, punishable or otherwise fraudulent or illicit traffic or content when using the service of CM.com and WhatsApp.
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