Version 1.0 – Last modified: April, 2013
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This Master Subscription Agreement (the “Agreement”) governs the obligations and rights of the Customer and eye4talent Technologies ApS (hereinafter referred to as “eye4talent “). The signatory to this Agreement is hereby admonished that he/she is responsible for ensuring that authorisation exists to bind the Customer through such execution.
If you have any questions about this please feel free to contact us through our Website or write to us.
1.1 “Content” means all visual, written or audible data, information or material including, without limitation: documents, spreadsheets, text messages, form entries, video, and similar material, which are uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer or the Users.
1.2 “Customer” means the individual or the legal entity who activates Services provided by eye4talent and assumes payment responsibility for the same vis-à-vis eye4talent.
1.3 “Initial Term” means the initial contract period during which the Customer subscribes to the Services.
1.4 “Order Form(s)” means the initial order form and/or order confirmation and any subsequent order forms and/ or order confirmations evidencing among other things the type of Subscription, Subscription term, Initial Term, the number of Users Licenses, ordered Professional Services, applicable fees, etc. Each such Order Form shall form an integral part of this Agreement. In the event of conflict between the terms of an Order Form and the terms of this Agreement, the terms of the Order Form shall prevail.
1.5 “Professional Services” means training, solution advising and any other related consultancy services.
1.6 “Renewal Term(s)” means successive renewal periods during which the Customer subscribes to the Services.
1.7 “Services” means the at all times current version of the web services, associated software, and other Services related thereto provided to the Customer by eye4talent in accordance with this Agreement. The Services are offered as a Software as a Service with several subscription types (including but not limited to the different Universes + edition and variations thereof), with the characteristics and features as described at www.eye4talent.com. In addition, the Services may include additional services and add-ons, including consultant hours, as agreed between the Customer and eye4talent on a Subscription or case-by-case basis.
1.8 “Subscription” means the terms governing among other things the type of Subscription, Subscription term, billing frequency, the number of Users Licenses, applicable fees, etc.
1.9 “Trial Service” means a Service, which is provided free of charge or which is under development or evaluation and is marked “free”, “demo”, “trial”, “beta” or “evaluation” (or a similar designation).
1.11 “User(s)” means all individuals who are authorized to start and/or participate in one or more Customer Workspaces. A user with an email address containing the Customer’s, its subsidiaries or any of its affiliated company’s, domain name is presumed to be a Company User. The presumption does not exclude that a Company User may have an email address using another domain address than the Customer, its subsidiaries or affiliated companies.
1.12 “User License(s)” means, as applicable, the subscribed number of Users under a Subscription.
1.13 “Website” means eye4talent’s Website at www. eye4talent.com and sub domains.
2. Services, License Grant & Restrictions
2.1 Subject to the terms and conditions of this Agreement, eye4talent hereby grants to the Customer a non-transferable, non-exclusive, sub-licensable limited term world-wide right and license for the Customer and Users to access and use the Services.
2.2 eye4talent reserves the right to implement new versions and upgrades of the Services including, but not limited to, changes that effect modifications to the design, operational method, technical specifications, systems, and other functions, etc. of the Services, at any time without prior notice.
2.3 eye4talent undertakes, in its sole discretion, to adopt reasonable measures in order to ensure that the Services are available over the Internet around the clock, seven (7) days a week. eye4talent shall be entitled to take measures that affect the aforementioned accessibility where eye4talent deems such to be necessary for technical, maintenance, operational, or security reasons. The Customer is aware and acknowledges that the Customer’s access to the Internet cannot be guaranteed and that eye4talent shall never be liable for deficiencies in the Customer’s own Internet connections or equipment.
2.4 The Customer shall be entitled, with or without compensation from Users, to provide Users with access to the Customer’s Content and the Services provided by eye4talent. The Customer is aware of and acknowledges that the Customer is fully liable for the Users to whom the Customer affords access to the Services. The Customer shall not charge a User any fee for its use of the Services in excess of the Customer’s direct costs to eye4talent for such User’s participation unless it has been agreed in writing with eye4talent.
2.5 eye4talent shall be entitled to retain subcontractors, including third party software suppliers, for the performance of obligations in accordance with this Agreement. eye4talent shall be liable for the subcontractors’ work and Services in the same manner as for its own work and Services.
2.6 In the event the parties have agreed that the Customer should be provided Professional Services related to the Services, the parties shall mutually agree upon when such Services shall be performed.
3. Trial Services
3.1 Trial Services are provided strictly “as is”. The Customer may use a Trial Service in a manner consistent with the terms and conditions of this Agreement, but eye4talent may, at its discretion, disable certain features of a Trial Service and enforce time limits on the Customer’s right to use the same. In light of the fact that a Trial Service is provided free of charge, eye4talent disclaims all warranties, representations, and liabilities as set forth in this Agreement and eye4talent shall not be liable for damages of any kind related to the Customer’s or User’s use of a Trial Service.
4. Customer Obligations
4.1 The Customer shall always comply with the security and administrative regulations as notified in conjunction with registration, by e-mail, as made available on the Website, or in any other manner. The Customer shall also be responsible for notifying Users of such regulations and also the User’s fulfillment regarding such regulations.
4.2 The Customer shall ensure that all details provided regarding the Customer’s contact information and billing information, where applicable, are correct and undertakes to update such information when changes to such information occurs.
4.3 The Customer shall be responsible for the activities conducted by the Customer and the User’s within the Services and shall use the Services in compliance with national laws in conjunction therewith. All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer and/or Users shall be the sole responsibility of the Customer.
4.4 The Customer shall be responsible for monitoring its Content and shall be liable vis-à-vis eye4talent for ensuring that Content transferred to or handled within the Services which is processed by the Customer and/or Users does not infringe any third party rights nor in any other manner violates governing legislation, and that the Customer and Users possess such necessary licenses from third parties as may be required in order to process the Content/use the Services.
4.5 The Customer undertakes to use the Services in such a manner that such use does not prevent or disrupt other computer communications or mobile telephone communications or prevent or disrupt the equipment employed in order to provide and use the Services.
4.6 The Customer is aware of and acknowledges that it is not permitted to use the Services in order to gain material in violation of applicable national law.
4.7 The Customer undertakes not to use the Services in any manner which may result in the infringement of any third party’s copyright, or which constitutes a dissemination of business secret, or may incite a third party to commit or participate in a crime, or may be understood as constituting a threat, or to use the Services in any other manner incompatible with the purpose intended.
4.9 The Customer shall remain liable for the Users’ use of the Services under this Agreement and ensure that Users perform their obligations towards eye4talent. To the extent the Customer is unable to perform an obligation on behalf of a User or is unable to cause the User to perform the same, the Customer shall instead indemnify eye4talent insofar as eye4talent incurs any loss, provided that such loss is related to the non-performance by the User of its obligations to eye4talent.
4.10 Furthermore, the Customer shall defend and indemnify eye4talent for any claim, suit or proceeding brought against eye4talent by Users and/or third parties that are connected to Content processed by Users/the Customer within the Services or for which the User/Customer is otherwise responsible, unless eye4talent is liable for such claim in accordance with the provisions of section 11, “Limitation of Liability”, below.
4.11 The Customer is obligated to notify eye4talent regarding any suspected breach of these provisions.
5. Fees and Payment Terms
5.1 The Customer shall pay compensation for the Services in accordance with the fees set out in the Order Form or otherwise agreed. Notwithstanding the above, eye4talent is entitled to annually adjust its fees. The reference date is the day the Agreement came into effect. The change can be calculated from the reference date and December 31 each year.
5.2 All Services provided by eye4talent shall be debited to the Customer in advance for the subscribed number of User Licenses as agreed between the parties. If not otherwise agreed, payment for Professional Services shall be made against date stated in the invoice. The Customer may upgrade a Subscription at any time with additional User Licenses or additional services as provided. Such added User Licenses, or services shall be coterminous with pre-existing User Licenses and services.
5.3 Payment shall be made by the Customer against invoice, through use of a credit card approved by eye4talent or other relevant payment services i.e. PayPal. Payment must reach eye4talent in full within the issue date of the invoice or credit card charge. Penalty interest shall be payable according to law. eye4talent shall be entitled to charge a fee for any payment reminders and reserves the right to send the same via e-mail to an invoice reference provided by the Customer. The Customer shall be responsible for the reasonable costs incurred by eye4talent when collecting overdue fees.
5.4 The Customer undertakes to make payment of invoices, in the currency stated on the invoice, into the account stated on the invoice.
5.5 eye4talent may temporarily disable the Customer’s and the Users’ access to the Services in the event the Customer has overdue payments in excess of twenty (20) days. In addition, eye4talent may terminate a Subscription, delete and destroy the Customer’s Content and to immediately terminate this Agreement in the event of overdue payments in excess of fifty (50) days.
5.6 In the event of early termination of a Subscription, the Services or the Agreement, the Customer shall not be entitled to a refund of any prepaid fees.
6.1 eye4talent shall hold title to any and all intellectual property rights and technical solutions to the Services or, in the alternative, shall possess a sole right to use the same. Such intellectual property rights and technical solutions may only be used by the Customer in the manner stated in this Agreement. Under no circumstances shall the Customer or a third party acquire any intellectual property rights to the Services or to the software or technical solutions used in the Services, or to any trademark or any other business mark belonging to or used by eye4talent. Access to the Services is licensed, not sold. In the event of an agreed case study or similar between Customer and eye4talent, all intellectual property rights to material produced, including but not limited to photos, quotes, interviews, videos, testimonials, under such work will belong to eye4talent and may at its sole discretion be used by eye4talent in the marketing of its services.
6.2 All Content uploaded to, transferred through, publicly posted, processed or entered into the Services by the Customer and/or Users shall remain the sole property of the Customer or its respective legal owner. eye4talent shall have no liability for such Content.
6.3 The Customer may not in any way modify, decompile, disassemble or reverse engineer the Services.
7. Customer Support
7.1 eye4talent provides customer support by Helpdesk & Self Service portal, e-mail and telephone regarding Customers’ enquiries in connection with use of the Services. Such support is provided on weekdays (excluding local country specific public holidays) during eye4talent’s country specific ordinary office hours and to the reasonable extent decided upon from time to time in detail by eye4talent.
7.2 Enquiries and/or error notices must be submitted to eye4talent by e-mail or telephone in accordance with the contact information available on the Website.
8. Personal Data, Privacy & Disclosure
8.1 In order for the Customer to be able to use the Services, the Customer must provide certain data to eye4talent regarding the Customer’s representatives, including but not limited to full name, e-mail address, contact details and type of organisation. Following receipt of such data, eye4talent will process the same using automatic data processing in order to enable eye4talent to administer and otherwise perform its obligations within the scope of the Services and to ensure that unauthorised persons do not gain access to the Services.
8.2 In addition, in order for the Customer to be able to use the Services, the Customer must also allow eye4talent to store and retrieve session information on the Customer’s representatives’ end terminal equipment, through the use of “cookies”. The purpose of such storage and retrieval of information is to enable the necessary login/logout procedures used in the Services and to ensure that unauthorised persons do not gain access to the Services.
8.5 The Customer is aware of and acknowledges that eye4talent will obtain the consent of the Users according to sections 8.1 and 8.4 above. Customer shall use its best endeavours to ensure that such consent is given by the Users. A User that does not give its consent will not gain access to the Services. If third party applications are made available by eye4talent within the Services, Customer acknowledges that eye4talent may allow such third party application provider access to Content and personal data as required for the interoperation of such embedded or linked applications.
8.6 If eye4talent is considered to be a personal data processors to Customer, eye4talent will accept such assignment based on the instructions and guidelines given by the Customer as the controller of personal data who has the full responsibility for the registered data under the applicable national law.
8.7 eye4talent shall adopt sufficient technical systems and operational procedures to protect the privacy of the Customer and the Users. eye4talent’s information gathering and dissemination practices are set forth in the Privacy Statement applicable from time to time, which is available on the website.
8.8 The Customer accepts that eye4talent is not obliged to disclose information to Customer in respect of individual Users use of the Service.
8.9 The Customer agrees that eye4talent may disclose the fact that the Customer is a paying Customer of eye4talent. In relation thereto, the Customer agrees that eye4talent may use the Customer’s name and logo to identify the Customer as a Customer of eye4talent on the Website, and as part of a general list of eye4talent’s Customers for use and reference in eye4talent’s promotional and marketing literature.
9.1 The Customer shall ensure that User identities, passwords, and equivalent obtained by the Customer in conjunction with registration are stored and used in a secure manner and cannot be accessed and thereby used by third parties. The Customer shall be liable for any unauthorised use of the Services. eye4talent shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.
9.2 Where it is suspected that any unauthorised person has become aware of a user identity and/or password, the Customer shall immediately inform eye4talent thereof and also change such user identity and/or password.
9.3 The Customer shall be liable for losses or damage incurred by eye4talent where the Customer intentionally or negligently reveals a user identity/password to a third party or where a user identity and password otherwise become known to an unauthorised party, unless the Customer notifies eye4talent immediately upon suspicion that such has occurred.
9.4 eye4talent shall adopt reasonable measures to ensure that the security of the Services meet relevant industry standards. eye4talent’s security measures are set forth in the Security Policy as applicable from time to time, which is available on the website.
10. Limited Warranty
10.1 eye4talent warrants to the Customer that the Services will perform substantially and materially in accordance with its documentation available on the Website, under normal use and circumstances, and for the purpose intended. This warrant does not apply to Trial Services.
10.2 Except for the express warranties set forth above and to the extent permitted by law, eye4talent expressly disclaims all other warranties with respect to the Services, whether express or implied, including without limitation, fitness for a particular purpose, accuracy or reliability of results from use of the Services, that the Services will meet specific requirements, that the Services will be uninterrupted, completely secure, free of software errors, or that defects and deficiencies in the Services will be corrected.
11. Limitation of Liability
11.1 Subject to the limitations set forth in this Agreement, each Party shall only be liable for direct damages.
11.2 In the event of major defects that seriously impede the Customer’s use of the Services and that are attributable to eye4talent, eye4talent undertakes to act to rectify such defect without unreasonable delay. In the absence of intent or gross negligence by eye4talent, eye4talent otherwise assumes no responsibility for defects or deficiencies in the Services. Error notification must be given by the Customer in accordance with the instructions announced by eye4talent and within a reasonable time of the discovery of the defect.
11.3 The Customer shall not be entitled to a reduction in payment, or to damages or other sanctions in the event of operational disruption or errors that impede data traffic that are not due to negligence by eye4talent.
11.4 eye4talent shall defend and indemnify Customer from and against any damage, cost and expense (including reasonable attorneys’ fees) incurred as a result of any claim, suit or proceeding brought against Customer based on a claim that the use of the Services furnished by eye4talent under this Agreement constitutes an infringement of any third party intellectual property right; provided that eye4talent has been notified promptly in writing of such claim, and given authority, information, and assistance to handle the claim or the defence of any suit, proceeding or settlement, and provided further that eye4talent shall have no obligations under this section 11 to the extent any claim is based on the combination or use of the Services with other software, hardware or services not furnished by eye4talent where the Services would not otherwise itself be infringing.
11.5 In the event that the Services in such suit or proceeding is held to constitute an infringement, or if in eye4talent’s reasonable opinion the Services may constitute such infringement, and/or its further use is enjoined, eye4talent shall, at its own expense and at its option, either
(i) procure for Customer the right to continue the use of the Services, or
(ii) replace the Services with non-infringing services of materially equivalent function and performance, or
(iii) modify the Services so that it becomes non-infringing without materially detracting from function or performance.
Should none of these measures be technically, commercially or economically reasonable to eye4talent, then either party may terminate this Agreement. Upon such termination, eye4talent shall refund the amount of fees paid in advance in respect of not yet used Services.
11.6 Each party’s liability under this Agreement shall, except for what is stated under 4, 9.3, 11.4, under all circumstances be limited to direct losses in an amount corresponding to the agreed fees paid by the Customer for the Services during the period of maximum of six (6) months immediately prior to the breach of contract that entitles a Party to damages. The foregoing shall not limit the Customers payment obligations under section 5 above.
11.7 In the absence of intent or gross negligence under no circumstances shall a party be liable for indirect or consequential losses, including but not limited to loss of profits or anticipated savings, loss of revenue, loss of Content or any other data.
11.8 A party may claim sanctions in accordance with the above only where the party provides the other party with a written notice thereof not later than sixty (60) calendar days after the party knew, or should have been aware, of the grounds for the claim.
12. Force Majeure
12.1 A party shall be released from liability in damages and other sanctions where the performance of a specific obligation is prevented or rendered onerous due to circumstances beyond a party’s control and which could not reasonably have been foreseen. Such force majeure events include, inter alia, labour conflicts, lightning, fire, decisions of public authorities or other public regulations, errors in another operator’s network, delays in services from subcontractors due to events as stated above, general scarcity of transport, goods, or energy, or other similar circumstances.
12.2 Where a party’s performance is prevented for a period in excess of three (3) months due to an event as stated above, either party shall be entitled to terminate the Agreement in writing without any obligation to pay compensation.
13.1 eye4talent undertakes not to disclose to any third party, or otherwise make available, information received by eye4talent from the Customer or Users within the scope of the Agreement. This confidentiality obligation shall not apply to such information as eye4talent can demonstrate became known to eye4talent other than pursuant to this Agreement or which is in the public domain. Nor shall the duty of confidentiality apply where a party is obligated to provide information pursuant to legal provisions, public authority regulations or court orders. The duty of confidentiality shall remain in force notwithstanding the termination of the Agreement.
13.2 eye4talent shall be entitled to review Content which is publicly posted through the Services’ web publication features. eye4talent also reserves the right to analyse usage patterns in an aggregated form.
13.3 Except for Content mentioned above and other than pursuant to the Customer’s instructions, legal provisions, public authority regulations or court orders, eye4talent shall not be entitled to review Content processed by the Customer via the Services.
14.1 eye4talent reserves the right to amend the terms and conditions of this Agreement. The Customer shall be informed of such amendments by e-mail or through the information being made available on the Website. The Customer shall be deemed to have received such notice within two (2) weeks of the notice being sent by e-mail or made available on the Website. Where the Customer does not accept the amendment, the Customer shall be entitled, within thirty (30) calendar days from the date of dispatch of the e-mail or, where appropriate, thirty (30) calendar days from the amendment being published on the Website, provided that the changes have an adverse effect, that could not be considered as minor, on the Customer, to terminate the Agreement with immediate effect. Where the Agreement is not terminated by the Customer within the aforementioned time, the Customer shall be deemed to have accepted the new terms and conditions.
15. Term of Agreement & Termination
15.1 This Agreement shall enter into force upon acceptance by the Customer of these terms and conditions through execution of this Agreement or acceptance by the Customer of these terms and conditions in an Order Form, frame agreement, or in any other form.
15.2 Upon expiration of the Initial Term, this Agreement will be automatically renewed with successive renewal terms at eye4talent’s then communicated current fees and terms and conditions.
15.4 This Agreement can be terminated by either party subject to written or online notice of termination as stated below or in the Order Form, effective only at the end of the then current Subscription term and provided that all accrued and/or prepaid fees are paid in full. Notice of termination must be given by the Customer, when applicable, at least one (1) monthy prior to the next billing period.
15.5 Upon termination of a Subscription or the Agreement, eye4talent shall not be responsible for the Content generated by the Users/Customer within the scope of the Subscription in question or the Services. Accordingly, it is the sole obligation of the Customer to ensure that it possesses the necessary back-up copies, etc. of the Content that it desires to retain when the Subscription is terminated.
15.6 Upon the active termination of a Subscription by the Customer, eye4talent shall be entitled to immediately delete and destroy all Content within the scope of the Subscription. In the event of expiration of the subscription term of a Subscription and in the absence of the Customer’s renewal of the same, eye4talent shall be entitled to delete and destroy such Content thirty (30) calendar days following the expiration date.
15.7 Upon termination of a Subscription or this Agreement for any reason, eye4talent shall be entitled to and undertakes to permanently delete and destroy all copies of the Customer’s Content related thereto within a timeframe reasonable relating to the back-up and administrative procedures applied by eye4talent from time to time.
15.8 Sections 11 and 13 shall survive any termination of this Agreement.
16. Access Restrictions & Premature Termination
17.1 eye4talent shall be entitled, in whole or in part, to assign its rights and obligations under the Agreement to a company within the same de jure or de facto group of companies as eye4talent without the Customer’s prior consent.
17.2 Save for the provisions of section 2.5, the Customer shall not be entitled to assign its rights or obligations under this Agreement without eye4talent’s prior written consent.
16. Access Restrictions & Premature Termination
16.1 eye4talent shall be entitled, with immediate effect, to disable the Customer’s access to a Subscription or to the Services or to prematurely terminate the Agreement in writing where: (a) the Customer or a User uses the Services in a manner that entails the perpetration of a crime; (b) the Customer or a User uses the Services in a manner that occasions losses or the risk of loss for eye4talent or any third party; (c) the Customer or a User uses the Services in a manner that violates eye4talent’s security or administrative regulations; (d) it may be reasonably assumed that continued dissemination of Content violates governing law; (e) notwithstanding reminders, the Customer fails to pay agreed fees to eye4talent within a stated time; (f) the Customer or a User uses the Services in a manner whereby the Customer utilizes resources or seeks unauthorised access to eye4talent’s systems which are not intended for the Customer; (g) the Customer otherwise fails to comply with the Agreement and such breach of contract is material; or (h) the Customer is placed into insolvent liquidation or is otherwise insolvent.
16.2 The Customer shall be entitled to prematurely terminate the Agreement in writing where: (a) operational disruptions or data traffic errors occur to such an extent that the Customer does not have access to the Services during a period in excess of one (1) month; (b) eye4talent is in material breach of its obligations under the Agreement and fails to effect rectification within fourteen (14) days of a demand therefore; or (c) eye4talent is placed into insolvent liquidation or is otherwise insolvent.
19. Governing Law & Disputes
19.1 This Agreement and the ensuing relationship between eye4talent and the Customer shall be construed in accordance with, and governed by, the laws of Denmark. The United Nations Convention on the International Sale of Goods shall have no application to this Agreement.
19.2 In the event of any dispute relating to this Agreement, the parties agree to initially make a full and good faith attempt to resolve such dispute by negotiation at an executive level, to the extent reasonable under the circumstances, prior to commencing court proceedings.
19.3 Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered at the Arbitration Institute of the Copenhagen Chamber of Commerce.
18. General Provisions
18.1 This Agreement has been prepared in the English language and the same shall be controlling in all respects. Any non-English versions of this Agreement are provided solely for accommodation purposes.
18.2 If any provision of this Agreement is declared unenforceable for any reason, the remainder of this Agreement will continue in full force and effect, and the unenforceable provision shall be amended to the extent possible and permitted by law to achieve as nearly as possible the same intent and economic effect as the original provision.