These Terms and Conditions of Use apply to Spott website platform “www.gospott.com”(hereinafter referred to as the “Site”) and to the services provided through the Spott Platform.
The Spott website is operated by SPOTT BV, a limited liability company organized under the laws of Belgium, whose registered office is located at Frederik Lintstraaat 57, 3000 Leuven, registered in the Register for Legal Persons under the BCE No. 1016.160.617.
The Site is published by SPOTT BV
Email contact: legal@gospott.com
These Terms and Conditions form together with the order form a contractual whole and constitutes the entire agreement between the Parties. It replaces and supersedes all prior written or oral proposals, communications or agreements relating to the subject matter of the Contract, as well as any general or special conditions of the Candidate.
By using Spott’s services through the website, the Client expressly agrees to all the clauses of this Agreement.
The following terms in the Agreement, when written with capital initial letters, either in singular or plural, shall have the meanings as set out in this Article 1.
2.1. This Agreement sets out the terms and conditions under and subject to which Spott shall provide the Recruitment Company with access and use of its Platform, so that the Recruitment Company may further exchange information and data in the context of Spott Connect.
Parties acknowledge and accept that:
2.2. During the performance of the Agreement and after its termination, no matter the reason, the Parties shall not commit any act contrary to honest market practices between companies and, in particular (but without the list being exhaustive), shall not illegally divert other Party’s customers, violate any of its duties under the Agreement (especially the obligation of confidentiality or respect of other Party’s trade secrets) or illegally compete with other Party.
Both Parties shall comply with any applicable legal or regulatory duty (especially Data Protection Law).
2.3. Spott is entitled to suspend the access to the Platform, granted to the Recruitment Company, in order to prevent or mitigate any serious risk to the security of IT systems of Spott, Spott’s clients or Recruitment Company or third parties. The access shall resume as soon as the risk is mitigated.
2.4. The Recruitment Company shall comply with the technical and security requirements governing the access and use of the Platform, as further described in the technical of this document, including, without limitation, “Spott Privacy Policy” (available on www.gospott.com);
3.1. In respect of the Personal Data collected and processed in the context of the performance of this Agreement, each Party shall perform all obligations under this Agreement in strict compliance with applicable Data Protection Laws and the applicable Data Processing Agreement and shall not take any action, or permit any action to be done, that may lead to a breach of the said Data Protection Laws.
3.2. The Parties agree that, should Spott act as a processor on behalf of the Recruitment Company for the Processing of Personal Data, a Data Processing Agreement, compliant with Article 28 of the General Data Protection Regulation, shall be concluded in writing by the Parties.
For the sake of clarity, the Parties acknowledge and agree that the Data Processing Agreement shall apply to the processing of personal data in the context of the Platform.
4.1. Confidential Information shall not include information that the Recipient Party can prove:
4.2. The Recipient Party shall hold all Confidential Information in strict confidence, and specifically, shall:
4.3. Should the Recipient Party be required to disclose Confidential Information pursuant to a statute, a regulation or the order of a court of competent jurisdiction or a public authority (“Legislative, Administrative or Judicial Action”), the Recipient Party shall immediately after gaining knowledge or receiving notice of such Legislative, Administrative or Judicial Action, to the extent permitted by law, notify the Disclosing Party thereof in writing and give the Disclosing Party the opportunity to seek any legal remedies so as to maintain such Confidential Information in confidence. The Recipient Party shall only disclose the legally required part of the Confidential Information.
4.4. Each Party shall ensure that any of its representatives, subcontractor, advisors, auditors, and Affiliate involved in the performance of the Agreement shall enter or have entered into a Non- Disclosure Agreement offering materially the same level of protection as contained in the present Article.
4.5. Each Party shall, upon termination of this Agreement (for whatever reason), or upon written demand by the other Party, promptly destroy or return any Confidential Information it has received or shall certify upon request that such Confidential Information has been destroyed, without keeping a copy. The Recipient Party may nevertheless keep a copy of the Confidential Information if and to the extent it is legally required to retain the Confidential Information. Unless the Parties agree otherwise in this Agreement, the Disclosing Party or its licensors will always remain the owner of all Confidential Information and the intellectual property rights contained therein.
4.6. The obligations and restrictions set forth in this shall be in force for the term of the Agreement and shall remain in effect after expiration or termination of the Agreement for any reason whatsoever.
5.1. The Client acknowledges that background software, database or any other item related to the access and use of the Platform under the present Agreement are either owned by Spott (which means that Spott holds any and all intellectual property rights or property rights on it), either used by Spott under a license agreement concluded with its Licensor. The Client agrees that they are the exclusive property of Spott or its Licensors and that nothing in the present Agreement can be interpreted as granting, either expressly or impliedly, any rights, title, interest, or licenses to the Client on such material.
5.2. If applicable, Spott grants to the Client and its Affiliates a non-exclusive worldwide and limited right to access and use the Platform for the exclusive and necessary use under the Agreement and any usage rights as may be necessary, enabling Client to operate the Platform for its intended use according to the Agreement. This right to access and use the Platform does not permit the Client to use it to provide services to third parties or to perform any acts other than as expressly permitted in accordance with the terms of this Agreement. Any limitations to this license (e.g., maximum number of users, types of users, manner of calculating, etc.) shall be explicitly set forth in the Agreement.
5.3. Spott shall not be granted any intellectual property right with respect to any of the materials, or data, in whatever form, Client would input in or run through the Platform, or any output data based on the input data of Client. Client shall remain the sole owner or licensee of such material, data or Client Data. Spott is only granted a restricted license on such material, data or Client Data limited to the extent necessary to perform its obligations under the Agreement.
5.4. Spott warrants that it is either the owner of, or otherwise has obtained all necessary licenses, consents, and authorizations with respect to any software, or other proprietary information enclosed in the Platform and the intended use of the Platform to the full extent contemplated herein. In addition, Spott warrants that the Platform does not and shall not infringe upon any patent, copyright, trademark or other proprietary right; and there is currently no actual or threatened suit against Spott by any Third Party based on an alleged violation of such right.
5.5. In the event of a claim, or if the Client is able to substantially demonstrate that the use of the Platform may infringe or misappropriate the rights of any Third Party, Spott may at no cost to Client: (i) modify the Platform so that they no longer infringe or misappropriate, without diminishing any of the functionalities of the Platform (ii) obtain the necessary rights for Client’s continued use of the Platform in accordance with the Agreement; or if neither (i) or (ii) are commercially reasonable, upon mutual agreement between Spott and Client terminate the use of the Platform within a reasonable time-frame allowing Client to migrate any and all data as may be needed to a replacement Spott and refund Client any prepaid fees covering the remainder of the applicable Term.
6.1. This Agreement shall take effect as from the date of signature (the “Effective Date”). Unless terminated earlier in accordance with the terms of this Agreement, it shall take effect for an unlimited duration.
6.2. Without prejudice to all other rights and remedies available by law or under the Agreement, each Party may terminate the Agreement with immediate effect and without compensation, and without intervention of a court, as from the date of receipt by the other Party of the notice of termination via registered mail, in the event that one or more of the following circumstances occurs:
6.3. Each Party may also terminate the Agreement, by giving the other Party [three (3) months] prior notice sent by registered mail or delivered by a reputable courier.
6.4. Expiration, termination or cancellation of the Agreement in accordance with the terms of the Agreement shall be without prejudice to the rights and liabilities of each Party accrued prior to the date of termination by law or under the Agreement, and shall not affect the coming into force or the continuance in force of the provisions of the Agreement which are expressly or by implication intended to come into or continue in force on or after such termination, including, without limitation, the provisions of the Articles, where applicable, entitled, DEFINITIONS, CONFIDENTIALITY OBLIGATION, DATA PROTECTION, LIABILITY AND INSURANCE, APPLICABLE LAW AND JURISDICTION and INTELLECTUAL PROPERTY RIGHTS. All such provisions shall be deemed to survive the expiration or termination of the Agreement for as long as necessary to fulfil their purposes.
7.1. Parties agree that, except if expressly stated otherwise in the present Agreement, the limitation of liability set forth in the agreement Spott Connect shall apply to the access to and use of the Platform under the present Agreement.
7.2. Nothing in this Agreement shall limit or exclude any liability for fraud, gross negligence, willful intent, or for death or personal injury as a result of a Party's negligence, or otherwise to the extent that such limitation or exclusion is not permitted by law.
7.3. Neither Party shall be liable to the other for loss of anticipated savings, loss of profits, company growth standstill, loss of turnover, loss of goodwill, wasted management time, or departed employees.
7.4. The Client/candidate acknowledges and accepts that (i) Spott is not a party to the contract concluded between the Client/candidate and the Recruitment Agency, and therefore, shall not be liable towards the Client/candidate or any third Party in case of violation, by the Recruitment Agency, of its legal or contractual duties; (ii) with regard to the information or data processed through the Platform Spott is acting as an intermediary and, therefore, Spott shall not be liable for the information or data stored and shall not monitor such information or data to seek facts or circumstances indicating illegal activity.
Neither Party shall be liable for any delay or failure to perform its obligations under the Agreement if such delay is due to Force Majeure.
If the delay or failure by a Party to perform its obligations due to Force Majeure exceeds 60 calendar days, either Party may immediately terminate the Agreement by providing notice in writing to the other Party.
8.1. The Parties shall endeavour to resolve any dispute or claim arising out of or relating to the Agreement through good faith negotiations. Should a dispute or claim arise, the management representatives of Spott and the Client, together with any procurement representative(s), shall attempt to resolve the matter within seven (7) calendar days of the matter being referred to them or such other period agreed upon by the parties. If the matter is not resolved by these persons within the above period, the matter may be referred by any party to the higher-level representatives in its respective organization.
8.2. These persons shall attempt to resolve the matter within fifteen (15) calendar days of the matter being referred to them or such other period agreed upon by the parties. The procedure under this Article shall not be mandatory for Spott in the event of a breach by the Client (i) which threatens the continuity of Spott’s activities, (ii) which threatens in a material way the quality of Spott’s services towards its clients.
8.3. If the unresolved dispute is having a material effect on the Business Services, the Parties will use their respective reasonable endeavours to reduce the elapsed time in reaching a resolution of the dispute.
8.4. Any dispute or claim arising out of or relating to the Agreement which cannot be resolved amicably between the Parties within the above period shall be solved in accordance with Article 9. –
8.5. The present Article is without prejudice to the right of the Parties to preserve a superior position with respect to a creditor and/or to obtain any injunction, including any summary order (in Dutch: “in kort geding” or “zoals in kort geding”; in French “en référé” or “comme en référé”).
9.1. All issues, questions and disputes concerning the validity, interpretation, enforcement, performance and termination of this Agreement shall be governed by and construed in accordance with Belgian law, and no effect shall be given to any other choice-of-law or conflict-of-laws rules or provisions (Belgian, foreign or international), that would cause the laws of any other jurisdiction to be applicable. This Agreement shall thus be governed by and construed according to the laws of Belgium.
9.2. For any claim, controversy or dispute of any kind or nature whatsoever arising between the Parties ("Dispute") that cannot be settled through negotiation, the Dispute shall be submitted to the exclusive jurisdiction of the courts of Brussels. irrespective of the Parties’ location, the place of performance of the Agreement or any other consideration.
10.1 This Agreement (including the enclosures attached hereto) contains the entire agreement between the parties hereto end shall supersede any, written or oral, prior agreements or understandings.
10.2. Each Party will not assign, transfer, or otherwise dispose of the Agreement or all or part of its rights and obligations under this Agreement without the prior written consent of the other Party which consent shall not be withheld if the Party satisfies the other Party that the proposed assignee or successor has the financial and technical status and ability to observe and perform in a proper and timely manner the obligations to be assigned (it being understood that such consent may reasonably be withheld, e.g. in the case of a proposed assignment to a competitor company). Any attempted assignment without such prior written consent shall be void ab initio
10.3. Spott may engage subcontractors, without Client's prior written consent. Spott shall remain fully responsible for its subcontractors and shall at all times bear full responsibility for the correct fulfilment of its obligations.
10.4. Without the other Party's written approval, no public announcement or promotional material of a Party shall mention or suggest the existence of the Agreement. Neither Party shall use the other Party's trade names, trademarks or logos without prior written consent.
10.5. Staff members shall represent Spott while providing the Deliverables, and they shall remain under Spott sole authority and responsibility. At no time shall Client exercise any employer’s authority over them or be deemed their legal or actual employer.
10.6. Except where expressly stated otherwise in the Agreement, the remedies under the Agreement shall be cumulative. Except where expressly stated otherwise in the Agreement, election of one remedy shall not preclude pursuit of other remedies available under the Agreement or at law.
10.7. The provisions of the Agreement are severable. Should one or more provisions of the Agreement be found by a court of competent jurisdiction to be invalid, unlawful or unenforceable under applicable law, that shall not affect the validity, legality or enforceability of the remaining portion of such provision(s) or any other provision of the Agreement, and the provision(s) found invalid, unlawful or unenforceable shall be construed to the maximum extent possible in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties.
All notices and other forms of communication required under this Agreement must be in writing and delivered or transmitted to the recipient in person through a reputable courier service, by fax with a confirmation sheet or by registered mail (with acknowledgment of receipt) to the address indicated below:
For Spott: legal@gospott.com or Frederik Lintstraat 57, 3000 Leuven, Belgium
This Data Processing Agreement ("Agreement") forms part of the Contract for Services ("Principal Agreement") between
(the “Company”)
And
Spott BV (the “Data Processor” or “the Processor”)
(together as the “Parties”)
Whereas
The Company acts as a Data Controller.
The Company wishes to subcontract certain Services, which imply the processing of personal data, to the Data Processor.
The Parties seek to implement a data processing agreement that complies with the requirements of the current legal framework in relation to data processing and with the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
The Parties wish to lay down their rights and obligations.
It is agreed as follows:
Article 1. Definitions and Interpretation
Unless otherwise defined herein, capitalized terms and expressions used in this Agreement shall have the following meaning:
Article 2. Processing of Company Personal Data
Processor shall comply with all applicable Data Protection Laws in the Processing of Company Personal Data; and not Process Company Personal Data other than on the relevant Company’s documented instructions. The Company instructs Processor to process Company Personal Data.
Article 3. Processor Personnel
Processor shall take reasonable steps to ensure the reliability of any employee, agent or contractor of any Contracted Processor who may have access to the Company Personal Data, ensuring in each case that access is strictly limited to those individuals who need to know / access the relevant Company Personal Data, as strictly necessary for the purposes of the Principal Agreement, and to comply with Applicable Laws in the context of that individual's duties to the Contracted Processor, ensuring that all such individuals are subject to confidentiality undertakings or professional or statutory obligations of confidentiality.
Article 4. Security
Taking into account the state of the art, the costs of implementation and the nature, scope, context and purposes of Processing as well as the risk of varying likelihood and severity for the rights and freedoms of natural persons, Processor shall in relation to the Company Personal Data implement appropriate technical and organizational measures to ensure a level of security appropriate to that risk, including, as appropriate, the measures referred to in Article 32(1) of the GDPR. In assessing the appropriate level of security, Processor shall take account in particular of the risks that are presented by Processing, in particular from a Personal Data Breach.
Article 5. Subprocessing
Processor shall not appoint (or disclose any Company Personal Data to) any Subprocessor unless required or authorized by the Company.
Article 6. Data Subject Rights
Taking into account the nature of the Processing, Processor shall assist the Company by implementing appropriate technical and organisational measures, insofar as this is possible, for the fulfilment of the Company obligations, as reasonably understood by Company, to respond to requests to exercise Data Subject rights under the Data Protection Laws. Processor shall:
Article 7. Personal Data Breach
Processor shall notify Company without undue delay upon Processor becoming aware of a Personal Data Breach affecting Company Personal Data, providing Company with sufficient information to allow the Company to meet any obligations to report or inform Data Subjects of the Personal Data Breach under the Data Protection Laws.
Processor shall co-operate with the Company and take reasonable commercial steps as are directed by Company to assist in the investigation, mitigation and remediation of each such Personal Data Breach.
Article 8. Data Protection Impact Assessment and Prior Consultation
Processor shall provide reasonable assistance to the Company with any data protection impact assessments, and prior consultations with Supervising Authorities or other competent data privacy authorities, which Company reasonably considers to be required by article 35 or 36 of the GDPR or equivalent provisions of any other Data Protection Law, in each case solely in relation to Processing of Company Personal Data by, and taking into account the nature of the Processing and information available to, the Contracted Processors.
Article 9. Deletion or return of Company Personal Data
Subject to this section 9 Processor shall promptly and in any event within 20 business days of the date of cessation of any Services involving the Processing of Company Personal Data (the "Cessation Date"), delete and procure the deletion of all copies of those Company Personal Data.
Article 10. Audit rights
Subject to this section 10, Processor shall make available to the Company on request all information necessary to demonstrate compliance with this Agreement, and shall allow for and contribute to audits, including inspections at Company own, by the Company cost or an auditor mandated by the Company in relation to the Processing of the Company Personal Data by the Contracted Processors. Provided it shall give Processor at least three (3) working days prior written notice in order to give the Processor the opportunity to arrange for the key personnel to be present to answer any questions the inspectors may have Information and audit rights of the Company only arise under section 10 to the extent that the Agreement does not otherwise give them information and audit rights meeting the relevant requirements of Data Protection Law.
Article 11. Data Transfer
The Processor may not transfer or authorize the transfer of Data to countries outside the EU and/or the European Economic Area (EEA) without the prior written consent of the Company. If personal data processed under this Agreement is transferred from a country within the European Economic Area to a country outside the European Economic Area, the Parties shall ensure that the personal data are adequately protected. To achieve this, the Parties shall, unless agreed otherwise, rely on EU approved standard contractual clauses for the transfer of personal data.
Article 12. Governing Law and Jurisdiction
This Agreement is governed by the laws of Belgium and is subject to the exclusive jurisdiction of the courts of Brussels. Both parties agree that for any dispute relating to or arising from the execution of this service proposal or the interpretation of its terms, the courts of Brussels shall have sole jurisdiction.
Article 13. General Terms
Confidentiality. Each Party must keep this Agreement and information it receives about the other Party and its business in connection with this Agreement (“Confidential Information”) confidential and must not use or disclose that Confidential Information without the prior written consent of the other Party except to the extent that: disclosure is required by law; the relevant information is already in the public domain.
Notices. All notices and communications given under this Agreement must be in writing and will be delivered personally, sent by post or sent by email to the address or email address set out in the heading of this Agreement at such other address as notified from time to time by the Parties changing address
