The following terms of service (“TOS”) shall apply to the Company’s access and use of the Textkernel Service(s). These TOS are part of the Order Form. These TOS (as they may be amended from time to time), together with any Order Form and SOW, are governed by the MSA (each as defined below), and together form a binding agreement (the “Agreement”) between Company and Textkernel.
1) DEFINITIONS
A number of notions are handled in the TOS, singular or plural, that start with a capital letter, and have the meaning of the italicised words as defined in section 1 of the MSA. In addition, the words that start with a capital letter that are not mentioned in section 1 of the MSA shall have the meaning of the italicized words as defined in this section 1 of the TOS.
Available / Availability: the time during which the Service is accessible by Company for live, real-time processing and data exchange at a reasonable acceptable speed.
Deficiency: an interruption to, or problem with the (Availability of) Service, that is either demonstrable or reproducible.
Downtime: time during which the Service is not Available, other than because of errors of Company or its agents or failures of software or equipment operated by Company or under its control.
Jobfeed Portal: has the meaning ascribed to that term in section 10;
Master Services Agreement (“MSA”): a framework agreement entered into between Textkernel and Company, governing Company’s access to and use of the Services and Textkernel Content.
Maintenance Windows: has the meaning ascribed to that term in section 9.
Non-Standard-Support: Support that is excluded from Standard Support, as set out in section 5;
Planned Downtime: expected time during Maintenance Windows, or time required for updates or modifications that are necessary for imminent security threats, during which the Service will not be Available.
Service Levels: has the meaning ascribed to that term in Section 7.
Service Level Credit: the amount that will be deducted from the amount to be paid by Company under the Agreement if Textkernel fails to meet the Service Levels.
Standard Hourly Rate: the hourly rate charged by Textkernel for Services performed at the request of the Company, either for Non-Standard Support activities or other activities at this rate as mutually agreed by the Parties in one or more Order Forms or SOWs. If no Standard Hourly Rate is detailed in the SOW(s) or Order Form(s), the Standard Hourly Rate of € 150 excluding VAT will be applicable.
Standard Support: Support provided during Working Hours on Working Days, as set out in section 4 of the TOS.
Support: the rendering of assistance and advice by Textkernel to Company concerning the usage of Functionality, as well as the rendering of assistance with the tracking of causes, also including deficiencies, in the form of Standard Support or Non-Standard Support, as the case may be and the context requires.
Working Day: any day that is not a Saturday, Sunday, 25 or 26 December, or 1 January.
Working Hours: EU: 8:30 AM CET/CEST to 6 PM CET/CEST. US: 7 AM EST/EDT to 5 PM EST/EDT.
2) CO-OPERATION AND RESTRICTIONS ON USE
2.1) When accessing the Service, the Company and its Users must:
a) not sell, transfer, distribute, sublicense or assign any of the Services or Textkernel Content or its rights to any of the Services or Textkernel Content to any third party, or use them in any other way for public or commercial purpose;
b) not alter, reverse engineer, decompile, disassemble or or otherwise attempt to derive or obtain information about the functioning, composition or operation of the Services, including the Textkernel Content therein;
c) not use or access the Services or Textkernel Content to: (i) build a competitive product or service, (ii) make or have made a product or service with similar features, functions, text, graphics or other content, (iii) make derivative works based upon the Services or Textkernel Content, (iv) copy any features, functions, text, or graphics of the Services or Textkernel Content;
d) not attempt to view, access or copy any material or data other than the Company is authorised to, and only to the extent necessary for the Company and its Users to use the Service in accordance with the Agreement;
e) not impersonate another person or misrepresent authorisation to act on behalf of others or Textkernel;
f) maintain the confidentiality of any login or access credentials provided by Textkernel for use of the Services;
g) not attempt to undermine the security or integrity of the Services;
h) not use, or misuse, the Service or Textkernel Content in any way which may impair the Availability or Functionality, or h) impair the ability of any other User to use the Service- for example by sending a virus, overloading, flooding, spamming, or mail-bombing any part of the Services;
i) neither use the Service in a manner, nor transmit, input or store any Company Content, that breaches any third party rights (including Intellectual Property Rights and privacy rights), or is unlawful, incorrect or misleading.
2.2) If Textkernel determines that Company is in breach of this section 2, Textkernel may suspend Company’s access to and use of Services, until such breach is cured. A breach of section 2 a,b,c,d,e,or g, or an imminent security threat caused by Company, constitutes a material breach, that entitlesTextkernel to terminate this Agreement without notice.
2.3) In case of expiration or termination of the Services or Agreement based on this section 2, Parties will consult in good faith regarding the (way of) winding down the relationship, and the transfer of Company Content, and / or other managing measures required for an undisturbed continuation of the use by the Company of Company Content. If needed, Textkernel will provide post-termination data retrieval assistance.
2.4) All activities that are executed by Textkernel within the framework of section 2.3 will be charged at Textkernel’s Standard Hourly Rate.
3) SUPPORT – GENERAL
3.1) Textkernel shall maintain log files of Company’s Support requests.
3.2) Company shall endeavor that Support requests and responses are routed efficiently, and Company or its Users do not disproportionately request Support, for example by multiple or repeated calls or Support requests about the same issue.
3.3) If Textkernel at its own discretion, determines that Company or Company’s Users are disproportionately requesting Support, Textkernel may:
a. request from Company that it takes additional measures to route Support requests and responses efficiently;
b. request from Company that it trains its Users to a sufficient level.
3.4) Standard Support efforts as described in section 4 are included in the (license) fees agreed in the Order Form(s) and performed by Textkernel at no additional charge to the Company.
3.5) Any Non-Standard Support activities from Textkernel requested by Company will – after written confirmation by Company – be charged at Textkernel’s Standard Hourly Rate. Any Non-Standard Support performed outside of Working Hours at Company’s request will be charged at a surcharge of 50% on top of Textkernel’s Standard Hourly Rate.
4) STANDARD SUPPORT
4.1) Unless otherwise provided, Company is entitled to request from Textkernel the following Standard Support:
a. Telephone support: during Working Hours, Textkernel shall provide advice and assistance to Company by telephone to diagnose suspected problems concerning the Services.
b. E-mail support: e-mails can be sent to Textkernel support e-mail address (service@textkernel.nl) at any time.
c. Support portal: Company may be given access to a support portal in which support requests can be registered at any time directly into Textkernel’s support ticket system.
4.2) Textkernel will answer Standard Support requests during Working Hours based on priority and the order in which the requests were received and in conformity with the Service Levels in section 7.
5) EXCLUSIONS – NON-STANDARD SUPPORT
5.1) If a Deficiency is found to be caused by one or more of the following excluded factors, then Textkernel may not provide Support or if it chooses to provide Support Textkernel may charge the Company at Textkernel’s current Non-Standard Support rates for such services, plus all reasonable costs and VAT. Textkernel shall notify the Company as soon as it becomes aware that a Deficiency may be caused by:
a. altered, damaged, or modified Services (save for those made by Textkernel);
b. incorrect use of the Services by Company;
c. failure of Company to implement reasonable recommendations in respect of or solutions to Deficiencies provided by Textkernel;
d. Third Party Content, or otherwise resulting from causes beyond the reasonable control of Textkernel;
e. Company not having a qualified contact person available to assist in addressing the Deficiency.
6) DEFICIENCY REPORTING
6.1) When reporting a Deficiency, Company shall provide Textkernel with the following minimum information, in writing:
a. a clear and reasonable description of the Deficiency;
b. if possible accompanied by materials, such as printouts, files, data, etc., which resulted when the Deficiency occurred and which may be helpful to identify and correct the Deficiency, including a description of the type of work being performed when the Deficiency occurred;
c. if applicable, the type of error message that was displayed.
7) SERVICE LEVELS AND DEFICIENCY CORRECTION
7.1) If Company reports a Deficiency for correction the following Service Levels apply:
A) Level 1: the Service partially or wholly has ceased to work, and Company is unable to continue working with all or a major part of the Functionality, or performance or Availability is seriously impacted or disrupted, in which case Textkernel shall respond within one (1) hour of receipt of the Deficiency report, and immediately thereafter shall use reasonable commercial efforts to design a temporary or permanent correction or workaround solution which shall be provided to Company as soon as reasonably possible. Textkernel will work outside of Working Hours to address and resolve Level 1 Deficiencies.
B) Level 2: the performance or Availability of the Services in the production environment is impacted or disrupted, but Company is able to continue working with the Service, albeit with limitations in Functionality or performance, in which case Textkernel shall respond within two (2) hour of receipt of the Deficiency report, and shall use reasonable commercial efforts to design, during Working Hours, a temporary or permanent correction or workaround solution which shall be provided to Company as soon as practicable.
C) Level 3: the performance or Availability of the Services is impacted, but Company is able to continue working with the major Functionality without serious performance limitations, in which case Textkernel shall respond within four (4) hours of receipt of the Deficiency report. Textkernel shall use reasonable efforts to design, during Working Hours, a temporary or permanent correction or workaround solution which shall be provided to Company as soon as practicable.
D) Level 4: there is only a minor impact on Functionality or performance of the Service, in which case Textkernel shall respond within one (1) business day of receipt of the Deficiency report. Textkernel may decide to include the correction of the Deficiency in a subsequent update or new version of the Service, or, in its sole discretion, may design a temporary or permanent correction or workaround solution.
7.2) Company shall propose the Service Level for each Deficiency in writing and shall include the reasons for such a proposal. Textkernel shall accept Company’s proposed Service Level, unless Textkernel provides a reasonable basis why a Deficiency should be assigned a different Service Level. If the parties do not agree on the Service Level assignment for any Deficiency within four (4) hours of receipt of the notification by Textkernel, the dispute shall be escalated to the management of each party for resolution in good faith.
7.3) To the extent that Textkernel believes repairing a Deficiency may impact the Availability of the Service, Textkernel will use its best efforts to provide a temporary, sufficient solution.
8) AVAILABILITY AND PERFORMANCE GUARANTEES
8.1) Textkernel shall make the Services available for 99,5% of each calendar month throughout the Term of the Agreement, except for:
a. Planned Downtime
b. Internet service Textkernel failures or delays
8.2)Although Textkernel attempts to limit disruptions or delays in the Availability and performance of the Services during Maintenance Windows, some Downtime may occur during those windows.
8.3)Failure of Textkernel to achieve the foregoing Availability shall mean the following penalties apply:
8.4) In the event that the Availability is not met in a single calendar month, Textkernel shall apply the above mentioned Service Level Credit to Company’s license fees for that month. The maximum Service Level Credit shall be 25% of the total annual license fees owed by Company to Textkernel.
9) MAINTENANCE WINDOWS
9.1) Maintenance Windows means: scheduled time reserved for regular maintenance or system recovery testing in production environments, during which the Service may not be Available, and which may be performed by Textkernel as set out below:
*) Textkernel will notify Company 1 week ahead of the Maintenance Window. If the anticipated Downtime is below 5 minutes Textkernel will not send a notification.
**) Textkernel will notify Company 2 weeks ahead of the Maintenance Window. If Textkernel anticipates a Downtime of more than 120 minutes, Textkernel will communicate this clearly to Company.
9.2) Emergency maintenance to avoid imminent security threats (for example, but not limited to security vulnerabilities/prevention of degradation in one of our critical components) may be deployed outside of the Maintenance Window if deemed necessary. Textkernel will make every reasonable effort to perform unscheduled emergency maintenance during Maintenance Windows. Texternel will make reasonable efforts to provide Company with advanced notice of anticipated emergency maintenance.
9.3) Textkernel publishes all of its maintenance on https://status.textkernel.nl
10) JOBFEED PORTAL SERVICES
10.1) The Jobfeed Portal is a Service that consists of access to a structured job ad database, which is created by using a software program that constantly and systematically searches the internet, locating and indexing websites that publicly display job ads. Textkernel processes the found job ads by classifying, de- duplicating and enhancing them with meta-information, in order to provide the Company and its Users with structured access, efficient searching functionalities, and, when agreed upon in an Order Form, analytics functionalities.
10.2) Access to the Jobfeed Portal is subject to the terms and conditions of the Agreement, including the restrictions on use as set out in section 2 of these TOS.
10.3) Unless otherwise agreed upon in a signed Order Form, Company may only use Jobfeed Portal for Company’s lawful internal business purposes.
10.4) Textkernel complies with robots.txt instructions and any other direct communications that it receives from a website’s owner. Textkernel offers no guarantees in relation to the completeness or accuracy of the data shown on Jobfeed Portal or the continuity of the supply of job ads from specific sources. Company is responsible for verification of the job ad on the original website, for its current status and correctness.
10.5) Company is aware that the job ads are harvested from the internet using automatic classification methods, which means that Textkernel Content may be supplied that does not contain any job ad, is incorrectly coded, is not correctly up-to-date, or is duplicate.
JOBFEED DATASETS ADDENDUM
This Addendum to the Terms of Service (“Addendum”) shall apply to the Company’s access and use of Jobfeed Datasets.
1) General background information
a) This Addendum is incorporated in, governed by and subject to the applicable Jobfeed Terms of Service (as amended from time to time, the “Agreement”).
b) Capitalized terms not otherwise defined herein have the meanings set forth in the Agreement. In the event of a conflict between this Addendum, and the Agreement, this Addendum shall prevail.
c) Textkernel will provide Company with data deliveries (via feeds or API, as the case may be) of (portions of) Textkernel’s proprietary database of job listings collected from websites and organized by Textkernel (the “Datasets”), that will be hosted on servers controlled by Company, and that will be used by Company to for the Purpose as described in the applicable Order Form (“the Purpose”).
d) Subject to the Order Form, and in addition to the rights granted under the Agreement, Textkernel hereby grants to Company the right to use the Datasets for the Purpose.
2) General restrictions on use
a) Company shall not use or store data from the Dataset longer than necessary for the Purpose, as described in this Addendum.
b) Company shall not, directly or indirectly, (i) use the Dataset, or any portion thereof, for any other purpose then the Purpose, or (ii) deliver, exchange, transfer, assign or sell the Datasets, or any portion thereof, or any rights and obligations under the applicable Order Form, this Addendum, and the Agreement to any third party other than as expressly permitted by Textkernel or (iii) use the Jobfeed Services or Dataset to create, train, or improve (directly or indirectly) a similar to, or competing with, the Textkernel products or Services.
c) Company shall not directly or indirectly grant paid access to job seekers to the Datasets without prior authorization of Textkernel, which may be subject to additional costs.
d) Company shall take reasonable efforts to prevent the harvesting, collecting or possessing of the Datasets by its authorized users or by third parties.
e) Company shall only republish the data in accordance with the applicable local laws and regulations. Company shall not be allowed to publish the entire text of any vacancies in the Datasets, but only a small portion (maximum length according to local copyright rules and regulations) of the vacancies with reference and a link to the original job posting.
f) Company’s technical staff shall provide Textkernel’s technical staff with summaries and descriptions of the technology and protocols used by Company to protect the Datasets.
g) Company agrees not to circumvent any measures implemented by Textkernel to prevent violations of any terms in the Agreement, Statement of Work or Addendum.
h) Other than as expressly set out in the Agreement or this Addendum, Textkernel does not warrant that the Datasets will be accurate, complete, reliable, available, or have the ability to meet Company’s needs. The Datasets are provided “as is”.
i) Company agrees that Textkernel may revoke the Dataset license granted at any time, in case of a breach of the Addendum or Agreement, and specifically in case of use of the Dataset beyond the agreed upon Purpose.
j) Company agrees that Textkernel is allowed to exclude specific sources of jobs from the Datasets upon request of those sources.
k) Upon termination of the Agreement or related Order Form, for any reason, the Dataset license granted by Textkernel to Company shall automatically cease, and Company shall cease use of the Datasets and destroy and remove all (portions of the) Datasets from its servers. Company will certify such destruction under penalty of perjury. Termination of this Agreement or related Order Form shall not release either Party from the obligation to make payment of all amounts then or thereafter due and payable hereunder. To the extent (portions) of the Datasets cannot be deleted or returned for technical reasons, Company will receive the same license rights with regard to these (portions of the) Datasets as set out in section 1c of this Addendum, with the addition that the license grant will be granted in perpetuity. Textkernel may charge the Company for such perpetual license.
l) Company must ensure that each of its users are bound to terms no less protective of Textkernel than the terms of the Agreement, including the Order Form, Terms of Service and this Addendum.
3) Research, analytics and publications
If Company intends to use the Datasets in research reports, models, articles, analytics, or other publications, the following shall also apply:
a) The Datasets may be used in a maximum of 4 of such publications by Company during the term of the Order Form.
b) Company will ensure proper attribution and credits for Textkernel in any publications for which the Datasets were used;
c) Company shall not mention the websites from which jobs were collected by Jobfeed in the research reports, models, articles, analytics, or publications;
d) Company agrees that it will only publish aggregated data from the Datasets and this aggregated data shall not exceed the volume of 1% of the Datasets. Before any such publication or external communication, Company will provide a copy to Textkernel for the purpose of demonstrating compliance with this clause;
e) The use of the Datasets in any other way as described in the Order Form, this Addendum, or the Agreement, is subject to Textkernel’s written approval and additional fees.
4) Indemnities and injunctive relief
a) Company will hold harmless and indemnify Textkernel and its affiliates, officers, agents, and employees from any claim, suit or action arising from or related to the use of the Datasets in violation of the Agreement or this Addendum, including any liability or expense arising from claims, losses, damages, suits, judgments, litigation costs and attorneys’ fees.
b) Company acknowledges and agrees that a breach or threatened breach of this Addendum would cause irreparable injury, that money damages would be an inadequate remedy, and that Textkernel shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain Company or anyone acting on Company’s behalf, from such breach or threatened breach.
5) Data Protection
a) Textkernel and Company each qualify as autonomous “controller” in the sense of the Regulation (EU) 2016/679 of 27 April 2016, in relation to the personal data (i.e. information in any form relating to an individual) processed in relation to the Datasets under the Agreement and this Addendum.
Both Company and Textkernel process personal data for its own purposes and are considered data controllers of such data. Each Party shall at all times comply with their respective obligations under all applicable data protection legislation in relation to all personal data that it receives from the other party in the course of performing its responsibilities and obligations under the Agreement and this Addendum.
6) Miscellaneous
a) Nothing herein shall be construed to confer any grant to, or license of, any intellectual property rights, whether by estoppel, by implication, or otherwise.
b) Company and its users may link to third party websites using the Jobfeed Services or Datasets. Textkernel does not control the third-party websites. Textkernel is not responsible for the contents of any third-party websites, any links contained in third party websites, or any changes to third party websites. Textkernel provides these links to third-party websites only as a convenience. The inclusion of any link does not imply an endorsement by Textkernel of the third-party website.
c) Except as otherwise provided herein, all other terms and conditions of the Agreement will continue in full force and effect.
SOURCE EXTENSION ADDENDUM
This Addendum to the Agreement (“Addendum”) shall apply to the Company’s access and use of Textkernel Source Extension.
GENERAL
This Addendum is supplementary to the applicable Agreement, as set out in the attached Order Form. All terms and conditions of the Agreement shall remain unchanged and in full force and effect except as amended by this Addendum. Capitalised terms not otherwise defined herein have the meanings set forth in the Agreement. In the event of a conflict between this Addendum, and the Agreement, this Addendum shall prevail.
SERVICE DESCRIPTION
Textkernel offers software that can capture data (the “Service”) from a browser’s local copy of certain web pages that you display or access using your browser (“Third Party Content”).
LICENSE GRANT
Subject to the terms and conditions of this Agreement, Textkernel hereby grants to Company a limited, personal, non-transferable, non-sublicensable licence to use the Service in the manner contemplated by this Addendum solely for your internal business purposes. The Service is licensed, not sold, to you for use only under the terms of this Agreement. Textkernel retains all title to and ownership of the Service and reserves all rights not expressly granted to Company. Company shall have no right to sub-license or resell the Services or any component thereof.
The rights granted under the terms of this Addendum include any software updates (including but not limited to bug fixes, patches, updates, upgrades, enhancements, new versions, supplements, and successors to the software), and support services for the Service.
Title and intellectual property rights in and to any Third Party Content displayed by or accessed through the Service belongs to the respective Third Party Content owner. Such Third Party Content may be protected by copyright or other intellectual property laws and treaties, and may be subject to terms of use of the third party providing such Third Party Content. This License does not grant Company any rights to use such Third Party Content.
NO GUARANTEES FOR THIRD PARTY CONTENT
The Service automatically captures data from sites and information located worldwide throughout the Internet. Because Textkernel has no control over the Third Party Content, Textkernel makes no guarantees as to such Third Party Content.
By using the Service, Company acknowledges that Textkernel makes no representations or warranties, and gives no guarantees, with regard to the Third Party Content, including (but not limited to) the appropriateness, lawfulness, sequence, accuracy, completeness or timeliness of the Third Party Content. Textkernel, its officers, affiliates and subsidiaries shall not, directly or indirectly, be liable, in any way, to Company or any other person for the Third Party Content Company receives using the Service or for any inaccuracies, errors in or omissions from the Third Party Content.
Company agrees it is solely responsible for the use of the Service and Third Party Content in compliance with the law, including any applicable data protection or privacy laws.
Textkernel conducts random checks on the accuracy of the data parsed from Third Party Content. Solely for these accuracy and verifying purposes Textkernel shall, for a maximum of 10 days, be allowed to store any Third Party Content collected under this Agreement.
RESTRICTIONS
Company agrees to the following additional terms and restrictions related to the granted licence:
a. Company may not:
(i) transmit or display the Service ‘s object code on any computer screen or to make any copy of the Service ‘s object code, for any purpose;
(ii) modify, adapt or translate the Service in any manner or form, or use modified versions of the Service, including but not limited to for the purpose of obtaining unauthorised access to the Service;
(iii) use the Service for any purpose that is unlawful or is otherwise prohibited by this Addendum;
(iv) rent, lease, loan, resell, sub-license, distribute or otherwise transfer the Service to any third party; or use the Service for any purpose other than your own internal business use; or
(v) remove any proprietary notices, labels or marks on the Service.
b. Company acknowledges that the Service contains trade secrets and other proprietary information of Textkernel. You may not decompile, disassemble or otherwise reverse engineer the Service, or engage in any other activities to obtain underlying information that is not visible to the user in connection with the normal use of the Service.
c. By using the Service Company expressly acknowledges and agrees that:
(i) Company will not be using the Service in violation of the Addendum and/or infringe patents, copyrights, trademarks, trade secrets, moral rights or other proprietary or intellectual property rights of respective owners of the Third Party Content.
(ii) Company represents and warrants that you have all rights, licenses, consents and releases that are necessary to transmit the Third Party Content to the Service for the purpose of generating records using this Third Party Content.
CHANGES
Textkernel may make changes to this Addendum from time to time, and if Textkernel does, Textkernel will notify Company.
INDEMNIFICATION
Company shall indemnify, defend and hold harmless Textkernel, its agents, affiliates, and licensors from any claim or liability (including without limitation reasonable legal fees) arising out of or related to: (a) your violation of any term of this Agreement; (b) Company’s use of, and access to, the Service or Third Party Content; (c) Company’s loss of, or disclosure of, information gained from using the Service; (d) Company’s violation of any applicable laws or regulations, including but not limited to the any applicable data protection or privacy laws (this includes any claims that Textkernel as Company’s agent violated any such laws); (e) Company’s violation of any third party right, including without limitation any copyright, property, or privacy right; (f) the activities of any third-party service Textkernels Company engages to assist with activities related to the use of Service. This defence and indemnification obligation will survive this Agreement and Company’svuse of the Service.
LIMITATION OF LIABILITY FOR SOURCE EXTENSION
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL TEXTKERNEL BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICE, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF TEXTKERNEL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
TO THE EXTENT PERMITTED BY LAW, THE MAXIMUM AGGREGATE LIABILITY OF TEXTKERNEL AND ITS AFFILIATES, AND ITS AND THEIR THIRD-PARTY LICENSORS, FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO THE AMOUNT OF ONE THOUSAND EUROS (€1,000.00).
ENTIRE AGREEMENT
This Addendum constitutes the entire agreement between the parties with respect to the use of the Service licensed hereunder and supersedes all prior or contemporaneous understandings regarding such subject matter.
CANDIDATE ENGAGEMENT ADDENDUM
This addendum contains the terms of use for the Candidate Engagement services that Textkernel, as a service Textkernel, links to the use of these services and APIs.
GENERAL
This Addendum is supplementary to the applicable Agreement, as set out in the attached Order Form. All terms and conditions of the Agreement shall remain unchanged and in full force and effect except as amended by this Addendum. Capitalized terms not otherwise defined herein have the meanings set forth in the Agreement. In the event of a conflict between this Addendum, and the Agreement, this Addendum shall prevail.
For customers who also use the Whatsapp Business subscription, additional, specific terms and conditions apply, which are included in the section “Conditions Whatsapp Business Solution”.
SERVICE DESCRIPTION
Candidate engagement service(s) as described in the applicable Order Form.
TERMS AND CONDITIONS
– The Service uses or integrates with third party software, such as integration with Microsoft LUIS and Whatsapp Business API integration. In those cases, the terms and conditions of use of the third party software supplier apply in full to the Client and its End Users.
– Company may grant access to the SaaS service to End Users within its own organization for use thereof for the benefit of its own organization. Company will take appropriate measures to ensure confidentiality with regard to the work in question, to comply with the user rights as referred to in this Agreement and to ensure that intellectual property rights are not violated.
– If the fee for the use of the SaaS service is based on the number of End Users and the functionality of the SaaS service is accessed in whole or in part via the API(s), this will continue to apply to the use of (those parts of) the SaaS service owes a fee based on the number of End Users who would use (those parts of) the SaaS service as if the access were not through the API but directly.
– The right of use only includes use of/access to the agreed SaaS service on Textkernel Infrastructure as well as, if agreed, the use of one or more APIs. The right of use/right of access is limited to the duration of the Agreement. Any further use beyond the explicitly agreed right of use/access is not permitted.
– Textkernel is allowed to make changes to the functionality (structure and/or behavior) of an API. These changes will be communicated through the release notes.
– Textkernel is allowed to apply a request restriction (‘throttling’) at its own discretion when the data traffic (including API traffic) generated by Company loads the system in such a way that the performance for other clients deteriorates. / is hindered.
– Textkernel is never responsible or liable for the (correct) functioning of software of the Company and/or third-party software that communicates with the SaaS service/Applications via the API(s).
Whatsapp Business Solutions
– The provisions of this article 3 apply (additionally) to Whatsapp Business Subscriptions and Solutions that Textkernel makes available to customers in collaboration with Messagebird.
– The acceptance of a Client, the start of the Whatsapp Business Service and the execution of the agreement is expressly subject to screening of the Company by (1) Textkernel and (2) MessageBird. This also applies to (3) Facebook and/or Whatsapp, which can independently screen and accept customers and can postpone or refuse onboarding.
– The terms and conditions of Facebook and/or Whatsapp always apply to the Whatsapp Business Service and the actual use by Company. The current applicable terms and conditions can be found at: www.whatsapp.com/legal/business-terms. Facebook and/or Whatsapp reserve the right to change these terms and conditions unilaterally and without prior notice or consent;
– Company must always observe these or updated terms and conditions and ensure that they continue to act in accordance with these terms and conditions.
– Textkernel or any of its affiliates is never responsible for the (correct) compliance by Company with the conditions set by Whatsapp or its authorized business solution Textkernel Messagebird. Textkernel or its affiliates are also not responsible for all situations in which the Whatsapp Business Service is withdrawn, changed or (temporarily) unavailable.
Sub-processors specific for Candidate Engagement modules
In addition to the sub-processors mentioned in exhibit 1 of the Textkernel Data Processing Agreement (DPA), the sub-processors in exhibit (x) shall also apply to the Textkernel Candidate Engagement services.
CREDITS ADDENDUM
This addendum contains the terms of use for credits in accordance with Textkernel Services.
ADDITIONAL DEFINITIONS
Credits: The currency of the Services. A running balance of available Credits is kept within the Account. In general, Credits are deducted when Company uses the Services, as described in the relevant web page, as such description may change from time to time. Credits expire either monthly (“Monthly Credits”) or annually (“Annual Credits”), unless agreed otherwise in writing.
Forever Credits: Forever Credits assume an expiration of 6 years from the time the first credit is consumed.
Acceptable Use Policy: “Acceptable Use Policy” and “AUP” refers to Textkernel’s standard acceptable use policy, as such policy may change from time to time. Company and anyone using Company’s credentials to access the Services is deemed to be a “Company” or “User” for purposes of the AUP.
TERMS AND CONDITIONS
1) Company will pay Textkernel in advance for a set number of Credits on the Services, with a defined expiration (monthly or annually), as described in any invoice or order form therefore. Textkernel is under no obligation to refund unused Credits for any reason, nor to refund or restore Credits for any reason, but may choose to do so in its sole discretion. In some cases, Textkernel in its sole discretion will permit transactions to continue for a short period after credits have expired or been completely exhausted.
2) Company will comply with the AUP. In the event that Textkernel in good faith believes that Company has materially breached the AUP, Textkernel may suspend or terminate Company’s access to the Services, without refund, in addition to such other remedies as Textkernel may have at law or pursuant to this Agreement. Neither this Agreement nor the AUP requires that Textkernel take any action to detect violations of this policy, the AUP, or any referenced policy, nor against Company or any other customer for violating such, but Textkernel is free to take any such action it sees fit.
3) Textkernel will attempt in good faith not to make a breaking change to its API more than one time in any rolling 12-month period; provided, however, if Company does not upgrade to the current version of the Services then Company waives any and all support from Textkernel as to the Services and Textkernel disclaims all representations and warranties otherwise applicable to such Services. If Textkernel makes a breaking change to its API, Textkernel will endeavour to provide a reasonable transition period in which the old API is still available for use. A change to an API method that does not constitute a breaking change if it adds new methods, augments existing methods with additional optional parameters (or, non-optional parameters that have default values), or augments the output to add new nodes.
4) Textkernel reserves the right to charge increased transaction costs (i.e., credits per API call) for use of older major versions when such older major version has been superseded by a newer major version for at least 365 days at time of cost increase, and 180 days prior notice of such increased transaction costs was communicated by Textkernel via an email setting forth the exact date that costs would change, and what the costs would change to.3)
