Terms & Conditions.
The Terms & Conditions were last amended on February 27, 2023.
Article 1. Definitions
The terms in these Terms & Conditions, both singular and plural, are considered to have the meaning described in this article.
- Account: the personal account that the Client can create via the Platform, for the purpose of enabling the use of the purchased Services.
- Agreement: any Agreement between Equalture and the Client under which Equalture delivers Services to the Client, and of which these Terms and Conditions form an integral part.
- Applicants: potential employees who leverage the platform as a job applicant in order to apply for a vacancy of the Client.
- Client: the natural person or legal entity, acting in a professional capacity, with whom Equalture has concluded an Agreement.
- Equalture: Equalture B.V with its registered office at Mauritsweg 35, Rotterdam (NL) and registered with the Chamber of Commerce under number 69620172.
- Terms and Conditions: these terms and conditions.
- In Writing: dated and signed correspondence on paper. In addition, this also includes email and fax messages, insofar as the origin and integrity of such messages can be sufficiently established.
- Intellectual Property Rights: all intellectual property rights and related rights, including, but not limited to, copyright, database rights, domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights as well as rights to know-how.
- Office Hours: the hours between 9:00 am and 6:00 pm Central European Time, Monday to Friday, excluding official Dutch national holidays.
- Party/Parties: the parties to the Agreement, Equalture and the Client, individually or jointly.
- Platform: the online platform of Equalture, assessable via equalture.com, on which the recruitment procedure between Applicants and potential employers (like the Client) can take place.
- Services: all services that Equalture delivers to the Client under the Agreement, including, but not limited to: (i) the provision of the Platform, (ii) the maintenance of the Platform (iii) the provision of the screenings- and matching process.
Article 2. Conclusion and fulfilment of the Agreement
- The Agreement will commence upon the registration of the Client on the Platform by Equalture.
- The Terms and Conditions apply to the registration process, the use of the Account by the Client, the evaluation process, and to the use of the Services by the Client.
- The applicability of any terms and conditions of the Client is explicitly excluded.
- The Agreement will commence upon the registration of the Client on the Platform by Equalture and will then remain in force for at least one year unless the Parties have explicitly agreed on an alternative term. In the event the Agreement is concluded for a specific period, the Agreement will be automatically renewed for the initial term of the Agreement, unless the Parties have explicitly agreed that the agreement will not be renewed automatically.
- In case the Client doesn’t wish to continue with Equalture, the Agreement can be terminated in writing towards the end of the term of the Agreement, subject to a notice period of one month. To terminate the Agreement, the Client should send a cancellation email to email@example.com.
- Equalture may suspend or give the notice to terminate the Agreement In Writing immediately, without notice of default being required, if the Client does not fulfill their payment obligation despite several reminders. This does not affect any sums paid or payable by the Client under the Agreement.
- Equalture may suspend or give the notice to terminate the Agreement In Writing with immediate effect, without notice of default being required, in the event the Client is declared bankrupt, the Client applies for or is granted suspension of payments, the Client’s activities are ceased or its business is wound up.
- Where Equalture suspends the performance of the Agreement, Equalture will retain all its rights and claims under the Agreement and the applicable laws and regulations.
- In the event that the Agreement is terminated, the amounts owed to Equalture by the Client will become immediately due and payable.
- Any dissolution of the Agreement, in whole or in part, does not affect any sums paid or payable by Client under this Agreement. As such, no reversal of payments shall take place.
Article 3. Delivery of Services
- The Services of Equalture enable the Client to easily find suitable Applicants, on the basis of their cognitive skills and behaviours.
- The Client entitles Equalture to fulfill an intermediary role in assessing an Applicant’s fit with the desired competencies for the Client’s vacancy.
- In any event, the Client will provide all the data and other information Equalture indicates are necessary, or which the Client should reasonably understand are essential for the delivery of the Services.
- Equalture will take into account any reasonable requests of the Client when fulfilling the Agreement, but is not obliged to comply with such requests. Equalture may charge additional costs (after written approval from the Client) for complying with a request. Equalture will provide its reasons if a request by the Client cannot be complied with.
- Equalture may engage third parties for the purpose of fulfilling the Agreement. Any associated costs will only be for the Client’s account where this has been agreed upon in advance.
Article 4. Division of Responsibilities
- Equalture shall perform the Agreement to the best of its ability, exercising due care and expertise. In relation to the Services, Equalture shall have an obligation to use reasonable endeavours. Statistics and/or estimates referred to in the Services are indicative only and form no guarantee whatsoever.
- Exceeding agreed-upon delivery times, whatever the cause or reason, shall not result in Equalture being in default and Client has no entitlement to any compensation, such as damages caused by delay.
- Equalture only fulfills an intermediary role in assessing an Applicant’s fit with the desired competencies for the Client’s vacancy.
- The Client represents and warrants that any information shared on Equalture’s platform (such as the automated email templates) does not violate applicable laws and regulations. In particular, the information must not be offensive, racist, discriminatory, or hateful and infringe any third-party (intellectual property) rights. The Client will indemnify and hold harmless Equalture from any and all damages, losses, and/or expenses incurred by Equalture arising from any third-party claim that the information, in whole or in part, infringe on the intellectual property rights (including, without limitation, copyrights and trademarks) or any other rights of a third party.
Article 5. Division of Responsibilities
- To use the Service, after the conclusion of the Agreement, the Client needs an Account.
- The Client must secure access to the Account by protecting the username and password against third-party access. In particular, the Client must keep the username and password strictly confidential. In addition to setting up a username and password, the Client will also have to prove their identity through Two-Factor-Authentication via email every thirty days. Equalture may assume that all actions undertaken from Client’s Account after logging in with the username and password are authorised and supervised by the Client. This means that the Client is liable for these actions.
- Creating an Account does not provide any guarantee of finding suitable Applicants, nor for filling the vacancies.
Article 6. Rules of use
- It is prohibited to use the Services in a manner that is in violation of these Terms and Conditions or applicable laws and regulations. Additionally, using the Services in a manner that may cause hindrance or loss and/or damage to Equalture or any third party is expressly not permitted.
- If Equalture determines that the Client has violated these Terms and Conditions or the law, or receives a complaint in this regard, Equalture may take measures to end the violation. Equalture will then block access to the information in question.
- If in Equalture’s sole discretion, the operation of the computer systems or network of Equalture or third parties and/or service provision via the internet is obstructed, impaired, or otherwise at risk, in particular as a result of the transmission of excessive amounts of e-mail or other data, leaked personal data or virus activity, Trojan horses and similar software, Equalture is authorised to take any and all measures it deems reasonably necessary to avert or prevent such risk. These measures include but are not limited to suspension of the Services and termination of the Agreement.
- Equalture is authorised at all times to report any criminal acts that are discovered and will cooperate with duly authorised orders and commands. In addition, Equalture is authorised to provide the name, address, IP address, and other data identifying the Client to a third party who has complained that the Client has violated its rights or these Terms and Conditions, provided that:
- It is sufficiently plausible that the information, on its own, is unlawful and harmful with regard to the third party;
- It is plausible that, in this specific case, there is no less far-reaching measure to obtain the data.
- Examining the interests involved entails that the third party’s interest should prevail.
- The Client shall follow all reasonable instructions issued by Equalture related to the use of the Services.
- Equalture may recover from the Client any loss and/or damage sustained as a result of violations of the rules under this article. The Client indemnifies Equalture against any and all third-party claims pertaining to loss and/or damage arising from a violation of the rules under this article.
Article 7. Modifications and maintenance
- Equalture may modify the Services to correct errors, add new functionality or improve performance. While the Parties may consult on such modifications in advance and the Client may make suggestions, the final decision on whether or not to implement the modification will be made by Equalture.
- If modifications will result in a significant change in the functionality of the Services, Equalture will notify the Client of the modifications in advance by e-mail.
- Equalture will endeavour to remedy any defects in the Services, but is also dependent on its Client in this regard. Equalture is entitled to not install certain updates or upgrades of Client it if believes that installing such updates or upgrades will not benefit the operation of the Services.
- If implementing modifications and improvements may have the effect of restricting the availability of the Services, this will be carried out as far as possible outside Office Hours. Emergency maintenance may be carried out at any moment and will not be announced in advance.
Article 8. Support
- Equalture will offer the Client a reasonable level of support with regard to questions about the use of the Services, as well as with technical issues related to the Services. A separate SLA can be agreed upon if relevant. This may result in additional costs for the Client.
- Support requests, as referred to in Article 8.1, can be addressed by sending an email to firstname.lastname@example.org. Equalture will be available for support from Monday to Friday, 8AM-6PM Central European Time.
- Equalture endeavours to handle requests submitted to the help desk within a reasonable period. The time needed to resolve reported issues may vary.
Article 9. Availability
- Equalture will make reasonable efforts to realise the uninterrupted availability of its Platform, but offers no guarantees in this respect.
- If, in Equalture’s opinion, the risk is posed to the operation of the computer systems or network of Equalture or third parties, for example in the event of a D(DOS) attack or malware activities, Equalture is authorised to take any and all measures it deems reasonably necessary to avert the risk and limit or prevent any loss and/or damage. This may result in degraded availability.
Article 10. Privacy (GDPR), Data Processing and Security
- To execute the Agreement, Equalture may process personal data on behalf of the Client through the Services it provides. In such case, the conditions as laid down in this article, are considered to be a data processing agreement in the sense of article 28 (3) of the General Data Protection Regulation (hereinafter: GDPR), in which the Client is a controller, and Equalture is a processor.
- The terms in this article that relate to the processing of personal data, have the meaning as defined by the GDPR, unless another definition is given here.
- Equalture processes personal data on behalf of the Client in accordance with the conditions and for the purposes laid down in this article. The processing will be executed exclusively within the framework of the Agreement, and for all such purposes as may be agreed to subsequently.
- Equalture will not take any independent decisions about the processing of personal data for other purposes, including but not limited to the provision of personal data to third parties and the retention periods of the data. The control over the personal data processed under this article and/or other agreements between the Parties rests with the Client. Equalture may anonymise the personal data and use this data for improving the Services.
- Personal data Equalture may process from applicants of the Client (category of data subjects) are: name (required), address (optional), e-mail address (required), telephone number (optional), gender (optional), date of birth (optional), country of residence, city of residence (optional), nationality (optional) & results of the assessments (required).
- Equalture and Client shall comply with the applicable laws and regulations governing the protection of personal data, under which the GDPR. The Client warrants that any submission or uploading of (personal) data to Equalture is lawful and that the processing of such data in accordance with the Agreement does not contravene any applicable privacy laws and regulations.
- Equalture shall furnish the Client promptly, on request, with details regarding the measures it has adopted to comply with its obligations under this article, and the applicable privacy laws and regulations. Besides that, Equalture will assist the Client, where necessary, in fulfillment of its (legal) obligations based on the GDPR. Equalture shall inform the Client if, in its opinion, an instruction by the Client constitutes an infringement of the applicable laws and regulations regarding the protection of personal data.
- If there is any (legal) obligation or requirement for Equalture to assist the Client based on the GDPR, Equalture will assist the Client in informing the supervisory authority and/or the data subjects.
- Equalture may process personal data in any country within the European Economic Area (EEA). Transmission of personal data to countries outside the EEA is also allowed, provided that the legal requirements for doing so have been fulfilled.
- The Client hereby grants Equalture general authorisation to engage third parties (subprocessors). The Controller authorises the Processor to engage the third parties as referred to in Annex 1. Upon request of the Client, Equalture shall inform the Client of the subprocessors engaged. On the basis of duly justified arguments, the Client has the right to object to new or to be changed subprocessors. In such case, the Parties shall consult each other to find a workable solution. Equalture ensures that subprocessors will be obliged to agree in writing to the same duties as are agreed between the Client and Equalture.
- Equalture shall take adequate technical and organisational measures against loss or any form of unlawful processing (such as unauthorised disclosure, deterioration, alteration or disclosure of personal data). Equalture will provide the Client, upon request, insight into its security policy, insofar as relevant for the Services. Equalture does not warrant that the security is effective under all circumstances. The Client shall only provide personal data to Equalture if it has ensured that the required security measures have been taken.
- In the event of a security breach in the sense of article 4 (12) of the GDPR, Equalture shall, to the best of its ability, notify the Client thereof without undue delay after the discovery of the security breach, after which the Client shall determine whether or not to inform the supervisory authority and/or the data subjects. The notification shall in any case include the fact that a security incident has occurred, as well as any other information known in this regard to Equalture.
- Where a data subject submits a request to Equalture to exercise one of its legal rights based on Chapter III of the GDPR, Equalture will forward this request to the Client. The Client will then deal with this request. Equalture may notify the data subject hereof. In case it is necessary, Equalture will support the Client in order to enable the data subject to exercise his/her legal rights.
- The Client has the right to conduct an audit, by an independent third party who shall be bound by confidentiality, to control compliance of Equalture with this article. The Client is allowed to perform an audit if the Client has a concrete suspicion of abuse of personal data by Equalture. The audit shall take place no earlier than two weeks after notification by the Client to Equalture and without viewing confidential information. Equalture will contribute to the audit and will provide the Client as soon as possible with all reasonably relevant information, including but not limited to supporting data such as system logs and employees.
- The findings in respect of the performed audit will be discussed and evaluated by the Parties and, where applicable, implemented by Equalture. The costs of the audit shall be borne by the Party that incurs them.
- In case the Client initiates a Data Protection Impact Assessment (hereinafter: DPIA), Equalture shall assist the Client where possible in fulfilling the DPIA, by inter alia providing the required information to the Client that is available for Equalture.
- Equalture may charge the Client reasonable costs for providing assistance with meeting the data subject’s rights, DPIA’s, prior consultation, and demonstrating compliance with the GDPR.
- In the event that the Agreement is terminated, the amounts owed to Equalture by the Client will become immediately due and payable (irrespective of the reason for the termination).
- After the Agreement has been terminated in accordance with article 2, the articles in Equalture will retain all data and other details of the Client for a period of thirty (30) calendar days. After this period, all data and other details of the Client will be deleted from Equalture’s systems, unless agreed otherwise. The conditions laid down in this article (10) will remain in force until all data and other details of the Client have been deleted.
Article 11. Compensation and payment
- Client shall be charged compensation during the term of the Agreement. In the pricing model, compensation is based on either the number of candidates who have completed the game-based assessments or the number of job slots, as well as a monthly fee to cover the platform usage, training sessions, and other Services required to guarantee a successful collaboration. The Client and Equalture together determine the most suitable pricing model.
- If the Client wishes an upgrade of either the number of job slots for assessments, they can submit a request at any time.
- The client may request a downgrade either the number of job slots for assessments, once during the term of the Agreement. Such a request cannot be made during the first six months of the yearly Agreement. The Clients that pay yearly can only request this at the end of the yearly term, for the following term, with a notice period of one month.
- The request to upgrade or downgrade the above-mentioned models can only be submitted by the Client to Equalture In Writing. After receiving a request In Writing from the Client to upgrade or downgrade the chosen model, Equalture will grant this request within a reasonable period of time. The changes due to the upgrade or downgrade in the chosen model will become effective the first day of the month in which Equalture has accepted the Clients request.
- Equalture will issue an invoice for all amounts owed and may invoice in advance and electronically. Invoicing will be done monthly or yearly, as agreed upon in the Agreement.
- All invoices are subject to a payment term of thirty (30) calendar days, unless the invoice specifies a different payment term or another term has been agreed upon In Writing.
- If an invoice is not paid within the payment term, the Client will be in default without notice of default being required. In that case, Equalture may suspend the delivery of all or part of the Services. Equalture is not liable for any resulting loss and/or damage incurred by the Client as a result of the suspension.
- All amounts owed to Equalture are immediately due and payable in the event the Client is declared bankrupt, the Client applies for or is granted suspension of payments, the Client’s activities are ceased or its business is wound up.
- All prices quoted by Equalture are in euros and are exclusive of VAT and other government taxes and duties.
- If a fee is based on information provided by the Client and such information proves to be incorrect or incomplete, Equalture is authorised to adjust the fee accordingly, even after the Agreement has already been concluded.
- Fees that are due periodically, can be increased annually in accordance with the applicable Consumer Price Index or a different index or standard agreed between the Parties.
- If the Client fails to pay the amounts due within the agreed term, the Client shall be liable for payment of the statutory commercial interest, as referred to in Section 6:119a of the Dutch Civil Code, on the outstanding amount, without notice of default being required.
- If, after receiving a demand for payment or notice of default, the Client fails to pay the amount due, Equalture may refer the claim for collection, in which case the Client shall also be liable to pay in full all judicial and extrajudicial costs, including all costs and fees of lawyers and external experts, in addition to the total amount due at that time.
Article 12. Liability and force majeure
- Equalture’s liability for loss and/or damages resulting from a failure in the performance of the Agreement, an unlawful act or otherwise, is limited to the amount (exclusive of VAT) that the Client has paid under the Agreement during the six months immediately preceding the breach or the act giving rise to liability.
- Equalture is only liable for direct loss and/or damage arising from an attributable failure in the performance of the Agreement. Direct loss and/or damage is solely understood to mean any and all loss and/or damage consisting of:
- The damage caused directly to tangible objects (‘property damage’);
- Reasonable and demonstrable costs the Client has had to incur in demanding that Equalture properly performs the Agreement, unless the defective performance is not attributable to Equalture;
- Reasonable costs to determine the cause and the extent of the direct loss and/or damage;
- Reasonable and demonstrable costs incurred by the Client to prevent or limit the direct loss and/or damage, insofar as the Client can demonstrate that such costs have resulted in limitation of the direct loss and/or damage;
- Reasonable and demonstrable costs for having the Agreement fulfilled by a third party, where Equalture, after receiving notice from the Client, fails to ensure proper performance within the reasonable term stipulated in the notice.
- Any limitation or exclusion of liability stipulated in the Agreement shall not apply in the event that the loss and/or damage is attributable to (1) wilful misconduct or deliberate recklessness on the part of Equalture’s management, or (2) death or bodily injury.
- Any right to claim compensation is at all times subject to the condition that the Client notifies Equalture of the loss and/or damage In Writing within no more than thirty (30) calendar days of its discovery.
- Equalture cannot be obliged to perform any obligation under the Agreement if the performance is prevented due to force majeure. Equalture is not liable for any loss and/or damage due to force majeure.
- Force majeure is considered to exist in any event in case of power outages, Internet failures, telecommunication infrastructure failures, network attacks (including D(DOS) attacks), attacks by malware or other harmful software, civil commotion, natural disaster, terror, mobilisation, war, import and export barriers, strikes, stagnation in supplies, fire, floods and any circumstance whereby Equalture is not able to perform or prevented from performing as a result of its suppliers, irrespective of the reason thereto.
- If a force majeure situation has lasted for more than ninety (90) calendar days, both Parties shall be entitled to give the notice to terminate the Agreement In Writing with immediate effect. The Services which in that case have been delivered by Equalture prior to the occurrence of the force majeure situation and during the force majeure situation will be paid for on a pro-rata basis.
- Equalture acts as an intermediary for creating a match between the Client and the Applicant. Equalture is not liable for failures in the performance of the (labour) agreement, since Equalture does not form a party to this agreement.
Article 13. Intellectual property
- All Intellectual Property Rights to the Services that are provided by Equalture under the Agreement shall remain the property of Equalture or its licensors.
- The Client will receive from Equalture the non-exclusive, non-transferable, and non-sublicensable limited rights to use the Services. The rights of use apply for the duration of the Agreement. No rights are granted to Client hereunder other than as expressly set forth in the Agreement.
- The Client is not authorised to make changes in the Services and is not entitled to a copy of the source files of the Services, except in cases where that is permitted under mandatory law.
- Equalture may implement technical or other measures to protect the Services. Where Equalture has implemented such measures, the Client may not remove or circumvent these measures.
Article 14. Amendment of Terms and Conditions
- Equalture may amend these Terms and Conditions at any time if the changes are not significant or are required by applicable mandatory law.
- Equalture will endeavour to announce the changes or additions to the Client by email at least thirty (30) calendar days before they take effect.
- If the Client does not wish to accept a change or addition, not being a change or addition pursuant to article 14.1 of these Terms and Conditions, the Client may give the notice to terminate the Agreement until the date it takes effect. Use of the Services after the effective date will be regarded as acceptance of the amended or supplemented terms and conditions.
Article 15. Confidentiality
- The Parties shall protect information that is marked as confidential, or which under the given circumstances should reasonably be regarded as confidential (‘Confidential Information’), by a reasonable degree of care against unauthorised disclosure.
- Each Party warrants that any employees that have a need to know Confidential Information are bound by confidentiality provisions which are at least as stringent as provided in the Agreement.
- Confidential Information may be disclosed in response to a valid court or other governmental order, provided (if permitted by such order) the disclosing Party is notified as soon as possible after receipt of the order and given the opportunity to seek legal redress against such disclosure, for instance by obtaining a preliminary injunction from a competent court.
- Information that would otherwise be Confidential Information shall not be deemed Confidential Information to the extent that the receiving Party proves by written records that said information.
- Is or has become publicly available without any wrongdoing by the receiving Party;
- Was lawfully obtained by the receiving Party prior to the date it was disclosed by the disclosing Party;
- Is lawfully obtained by the receiving Party from a third party, provided that the third party does not breach any confidentiality obligation towards the disclosing Party; or
- Is independently developed by the receiving Party and without the use of any information of the disclosing Party.
- Upon first request of the disclosing Party, the receiving Party shall destroy or return to the disclosing Party all Confidential Information received in written or another tangible form, including all copies thereof.
Article 16. Final provisions
- This Agreement is governed exclusively by Dutch law, without regard to its conflict of laws provisions.
- Any dispute between the Parties in connection with the Agreement will be submitted to the competent court in the Netherlands in the district where Equalture has its registered office.
- The version of any communication of information as recorded by Equalture shall be deemed to be authentic, unless the Client supplies proof to the contrary.
- If any provision of the Agreement is found to be contrary to applicable law, or is otherwise unenforceable, this provision will be amended to the extent that it is in accordance with applicable law, with due observance of the intended meaning of the relevant provision.
- The Client will not be authorised to transfer this Agreement or any of its rights and obligations arising therefrom to a third party without the express consent of Equalture. Equalture will be authorised to transfer this Agreement and all its rights and obligations arising therefrom to a third party that acquires the business operations to which this Agreement is subject.
Annex 1. Subprocessors
- Google Cloud Platform (storage NL): Server hosting, database warehousing, commercial website, web application, email distribution.