CareerTracker Terms of Service – 2025
- DEFINITIONS
| Term | Definition |
| Consultancy Services | services provided by CareerTracker to Customer other than SaaS Services and Support Services. |
| Customer | contracting party of CareerTracker for the delivery of Services. |
| Customer Data | data owned by Customer as used in the SaaS Service as further defined in clause 12.2. |
| Defect | a malfunction in SaaS Services provided by CareerTracker (not caused by incorrect configuration or otherwise not following usage instructions in the Documentation) materially degrading functionality of the SaaS Services as described in the then current Documentation. |
| Documentation | the then latest version of the user manuals for the SaaS Services as issued by CareerTracker to the Customer from time to time. |
| Intellectual Property Rights | all copyrights, patents, database rights, rights in trademarks, designs, know-how, logos, confidential information, rights in domain name registrations and similar rights (whether registered or unregistered). |
| Modification | making changes to the SaaS Service, such as changing its configuration, settings, functionality, interfaces or technical capabilities. |
| Offer written | offer issued by an authorized representative of CareerTracker for the provision of Services to the Customer. |
| Order | order which is accepted by the Customer. |
| SaaS Services | making a standard CareerTracker software application managed and hosted by CareerTracker as identified in the Order, available for use by Customer over the internet on a ‘Software as a Service’ (SaaS) basis. |
| Services | all services of CareerTracker as provided to the Customer, including SaaS Services, Consultancy Services and Support Services. |
| CareerTracker | a Dutch company with, as registered address Haarlemmermeerpolder 1, 3825 JJ, Amersfoort, the Netherlands and Chamber of Commerce Registration number 82224110 |
| CareerTracker Data | (i) data provided by CareerTracker itself or via third party suppliers to Customer by means of the SaaS Services, (ii) which is generated by means of the SaaS Services or (iii) to which CareerTracker provides access to via the SaaS Services. |
| User | a user is the person who uses the CareerTracker environment |
| Support Services | the standard support services as agreed to be provided by CareerTracker to Customer in the Order with respect to the SaaS Services under the terms of clause 5 |
2. APPLICABILITY OF TERMS
2.1. Introduction: These are the general terms and conditions of CareerTracker. These apply to all Services of CareerTracker, all Offers of CareerTracker, and all agreements entered into by CareerTracker with the Customer with respect to the supply of Services by CareerTracker.
2.2. Offers and Orders: Customer may accept Offers for Orders issued by CareerTracker by signing them and sending these to CareerTracker or by accepting them online (if the Order is offered online such as on websites, in app-stores or in apps). Offers for Orders expire if not accepted by Customer within 30 days of the date they were provided, unless another validity terms is expressly included in the Offer. Offers made by CareerTracker online may be revoked without notice. Apparent typos and errors in Offers do not bind CareerTracker and CareerTracker may reject or terminate Orders based on Offers containing such apparent errors.
3. SAAS SERVICES SCOPE
3.1. Hosting and technical management: SaaS Services of CareerTracker as standard include the hosting and technical management by CareerTracker of the software in a secured third-party data centre, physically located in Europe. The software will be implemented by CareerTracker and made available ready for use by Customer via the internet. Customer can subsequently connect to the Software via the internet using up to date software browsers.
3.2. Service commitment: CareerTracker will ensure the SaaS Services are provided in a professional manner and will work to ensure they will function for the duration of the subscription of Customer for the SaaS Services in substantial conformity with the Documentation. CareerTracker does not warrant the SaaS Services will operate error free or uninterrupted, but commits to address Defects in the SaaS Services in accordance with clause.
3.3. Evolution of SaaS Services: The SaaS Services provided by CareerTracker may be updated, changed and upgraded by CareerTracker from time to time. For material changes to the SaaS Services with a foreseeable material impact on Customer, CareerTracker will (where reasonably possible) provide at least 30 days prior notice (via email to registered Customer contact or posting of a message on the login screen of the SaaS Services) to enable Customer to prepare for such change. CareerTracker will not charge Customer additional fees for additional features it may make available to Customer by means of such changes, unless this concerns future new features or functions for which CareerTracker also generally charges other users of the SaaS Services separately. However separately charged new features will not be activated and charged to Customer until Customer has confirmed to desire to use such new feature by concluding an Order in which the related additional charges are agreed.
4. LICENSE TERMS CAREERTRACKER SAAS SERVICES
4.1. Usage limitations: Any license granted under an Order to use SaaS Services will be non-transferable, non-exclusive, for Customer’s own internal business purposes, for the expressly permitted scope of use as set out in the Order and subject to the usage limitations set out in such Order and these Terms of Service. Use beyond the agreed usage scope, quantity / intensity by Customer without prior agreement in an Order entitles CareerTracker to invoice Customer for the additional usage made at CareerTracker then current standard pricing for such expanded use and to require Customer to indemnify CareerTracker from any third party claims for additional license fees due by CareerTracker to third party licensors due to such use. Customer may not copy and use any part of the SaaS Services, expressly including any software, concept, know-how, map, data base, data element or other proprietary aspect of the SaaS Services for use outside the licensed scope of the SaaS Services. Customer must in using the SaaS Service observe the usage instructions and guidelines in the Documentation and may not use the SaaS Services in a manner interfering or disrupting the integrity of the proper functioning of the SaaS Services and the data stored thereon.
4.2. No use for/by third parties / affiliates / suppliers allowed: Customer may only use the SaaS Services for its own internal business purposes and may not make the use the SaaS Services available to any third party by sale, rent, sublicensing, timesharing, posting on a public website or on any other basis nor use the SaaS Services for the benefit of any third party on any basis including by reselling them or by combining them with the services provided by Customer to third parties, except where this is in the Order expressly agreed to be permitted for specific use cases and specifically agreed third parties who Customer may enable the use of or the benefit of the use of the SaaS Services. This expressly includes a prohibition to use the SaaS Services for, or allow the use by, corporate affiliates / group companies / subsidiaries / licensees / franchisees / suppliers / freelancers of Customer unless this is expressly otherwise agreed in the Order. Sending third parties (expressly including customers / suppliers / partners etc. of Customer) messages (such as SMS / email / chat messages) based on or containing CareerTracker Data generated by means of the SaaS Services is a form of use of the SaaS Services for the benefit of such third party which is only allowed if this expressly agreed in the Order as being a permitted form of use of the SaaS Service!
4.3. Customer responsibility for legal use: Customer is fully responsible for all use Customer makes of the SaaS Services, all data it uploads to and distributes via the SaaS Services and all related instructions it gives to CareerTracker in configuring and using the SaaS Services for Customer and to ensure such use complies with applicable laws. Customer shall at all times ensure that all such use complies with applicable laws, does not violate any third-party rights (expressly including any intellectual property rights or privacy rights) and is does not constitute a tort against any third party. CareerTracker agreement to provide the Services to Customer, to process Customer Data or to perform Services in accordance with the instructions of Customer shall not be held to imply any legal advice by CareerTracker to Customer or any waiver with respect to any restriction under this clause. Customer will indemnify and hold CareerTracker harmless from any third party claim caused by any violation by Customer of this clause.
4.4. Right to suspend services: CareerTracker reserves the right to suspend or terminate any use of the SaaS Services provided by CareerTracker, expressly including the sending of any messages via the SaaS Services which it reasonably deems to violate these terms, any applicable law or any third party right.
4.5. Return of Customer Data: CareerTracker will upon termination of the Services for up to 30 days after such termination allow Customer to download from the SaaS Services any copies of Customer Data available for download from the SaaS Services or otherwise provide such data on an electronic data carrier in an open, structured format.
4.6. Third party license terms: If the SaaS Services to be provided by CareerTracker are based on or are to be used combined with SaaS services, data sources and/or standard software tools of third-party licensors to CareerTracker (hereafter Third Party Tools), then with respect to the use of such Third Party Tools, the relevant license and usage conditions with respect to such Third Party Tools as imposed by the relevant third party licensor as shared by CareerTracker with Customer will apply to the use thereof, in addition and where relevant in deviation of these Terms of Service of CareerTracker. The fees payable for the use of Third Party Tools are included in the fees agreed for the SaaS Services to be provided by CareerTracker and are not separately payable by Customer unless expressly otherwise agreed in the relevant Order.
4.7. Test/ beta/ evaluation license: Any right to use SaaS Services granted on a ‘test’/ ‘beta’/ ‘acceptance’/ ‘training’/ ‘demo’ basis (or similar indication that SaaS Services are not intended for full commercial use), shall be used by Customer for the sole purpose of evaluation or testing of the SaaS Service and may not be used for normal operational / commercial use. Such SaaS Services are provided without warranty on an “as is” basis and without entitlement to any Support Services (except as may be expressly otherwise agreed in the Order) and may be revoked by CareerTracker at any time for any reason.
5. SUPPORT SERVICES FOR CAREERTRACKER SAAS SERVICES
5.1. Support Services: Customer is entitled to receive Support Services from CareerTracker as specified in the order for the SaaS Services and provided Customer has paid all applicable fees for the SaaS Services and Support Services when due. The scope of the Support Services is as agreed in the relevant Order and the related procedures, service levels and operational and technical terms of use are described in the then current Support SLA of CareerTracker for the Support Services for the relevant SaaS Service. Material changes to procedural and technical details Support SLAs are announced by CareerTracker in writing and at least 60 days in advance. Changes reducing service level commitments in the Support SLA can only be made with the consent of Customer.
5.2. Support Services – general support: Support Services included in the subscription fees for the SaaS Services include the following (operational details are included in the Support SLA):
a. access to the Documentation of the SaaS Services and self-help tooling (such as the FAQ lists, white papers, example materials and use cases) as made available from time to time to Customer;
b. general usage support via email and phone during business hours to answer reasonable usage related questions regarding the SaaS Services regarding aspects not covered by the Documentation and other self-help tooling made available by CareerTracker;
c. proactive monitoring by CareerTracker of key performance statistics of the SaaS Services to help prevent Defects and to identify Defects occurring in the SaaS Services.
5.3. Support Services – Defects: CareerTracker will as part of the Support Services use its reasonable efforts to address and resolve Defects in accordance with the procedures and service levels set out in the Support SLA. In case a Defect effectively blocks Customer from accessing the SaaS Services or using material parts of the functionality of the Services, CareerTracker will use all reasonable efforts to provide at least a work around to allow Customer to resume use of the (affected part of) the SaaS Services as soon as practical, which work around may require Customer to temporarily accept to apply alternative working procedures or a reduction of minor functionality.
5.4. Customer responsibilities for receiving support: Customer must ensure that employees contacting CareerTracker receive general support and/or to report Defects have been suitably trained to operate the SaaS Software and have consulted the Documentation of the SaaS Services before contacting CareerTracker for support. When reporting a Defect Customer must provide all relevant information and cooperation to CareerTracker to enable CareerTracker to identify and reproduce the Defect. Resolving Defects or other issues caused by failures to follow usage instructions set out in the Documentation, by uploaded materials not compliant with the related technical requirements or with respect to restoring Customer data are not part of standard Support Services, and assistance with respect thereto may be separately charged by CareerTracker as Consultancy Service to Customer.
5.5. Support updates: As part of Support Services, CareerTracker may install updates of the SaaS Service. Their implementation may temporarily affect availability of the SaaS Service for use by Customer. CareerTracker will announce and perform support update implementations in accordance with the procedures set out in the Support SLA. CareerTracker may refuse to address Defects if Customer does not enable the installation of an update that would prevent or resolve such Defect.
5.6. Modifications: Creating and implementing Modifications is not part of standard Support Services and are performed as Consultancy Services. CareerTracker may also offer optional standard Modifications to the SaaS Services to offer new or improved functionality which may be subject to additional license fees. License fees for such optional Modifications are not mandatory for the Customer to order and are only chargeable to Customer if Customer expressly agreed to the applicable additional license fee in writing.
5.7. Quality commitment Support Services: CareerTracker will provide Support Services in a professional and diligent manner and commits to use its reasonable efforts to address and resolve Defects in the SaaS Service for which the Support Services are provided in accordance with the applicable Support SLA. CareerTracker expressly does not warrant it will be able to resolve all Defects or that the SaaS Services will operate without Defect and/or uninterrupted. Resolution of a Defect in the SaaS Service may require the cooperation of Customer and may require Customer to temporarily accept minor other shortcomings or the installing of an update. CareerTracker cannot warrant the uninterrupted availability or accuracy of third party data sources which are made available via the SaaS Services, but CareerTracker will (at no additional charge) and as part of standard Support Services seek to address and resolve or provide a work around for any issue in the availability or accuracy of such third party data sources.
6. CONSULTANCY SERVICES
6.1. Consultancy Services: All forms of services provided by CareerTracker other than the SaaS Services and related standard Support Services as set out above, such as general advisory services, work on Modifications, training, assistance in implementing and customizing the SaaS Services for Customer, assisting in uploading and tailoring Customer Data for use with SaaS Services, are Consultancy Services which are not included in the subscription fees for SaaS Services provided by CareerTracker and are separately chargeable to Customer.
6.2. Terms and dates: All delivery dates and other periods stated or agreed by CareerTracker for Consultancy Services are based on data known to CareerTracker when it agreed or communicated such dates or periods and may be subject to change. CareerTracker will use its reasonable efforts to observe agreed delivery dates and other periods as much as possible, subject to the Customer’s timely performance of its obligations, and will give notice to Customer in case any specifically communicated period or date is expected to change.
6.3. Fees for Consultancy Services: Unless expressly otherwise agreed, Consultancy Services are charged on a time and material basis against the standard hourly rates of CareerTracker or such hourly rates as may be agreed in the relevant Order. Communicated budgets for performing certain activities are (unless expressly otherwise agreed) non-binding estimates and not fixed prices. CareerTracker will only with the prior written consent from Customer spend time beyond an agreed budget. Agreed fixed prices for Consultancy Services for certain specific activities are subject to the assumptions and conditions set out in the Order and on the general assumption Customer provided correct, up to date and complete information for CareerTracker to basis its fixed price offer on and will fully cooperate as per clause 6.4 below. For Consultancy Services on a fixed price basis related to designing, tailoring look and feel, house style, aligning to Customer policies or other elements subject to the subjective approval by Customer, one correction round is included in such fixed price. Additional iterations to fine tune such aspects of the relevant deliverables are not included in the fixed price and may be separately charged by CareerTracker.
6.4. Customer cooperation: The Customer shall furnish CareerTracker in a timely manner with all information and cooperation which is reasonably requested by CareerTracker to execute its obligations. Customer will ensure any Customer Data provided for inclusion in the SaaS Services complies with the relevant technical standards as set out in the Documentation. Where the Consultancy Services are provided with respect to integrating / connecting the SaaS Services with third party SaaS services or data services which are provided by third parties under a direct agreement between Customer and the relevant third party providers, then Customer is responsible to ensure the timely and correct cooperation by such third party provider to enable CareerTracker to perform the Consultancy Services and subsequently deliver the SaaS Services. With respect to Modifications performed by CareerTracker, business specific functionality and configurations are implemented under the responsibility of Customer and on the basis of its input and its active collaboration with CareerTracker in establishing what is required for the effective support of Customer’s business requirements.
6.5. Quality commitment Consultancy Services: CareerTracker will provide Consultancy Services in a professional and diligent manner. In case deliverables created as the result of Consultancy Services contain manifest errors or shortcomings caused by a failure by CareerTracker to perform the Consultancy Services to the standard set out in this clause, and Customer reports this to CareerTracker within 14 days after the delivery of the relevant deliverable, CareerTracker will a sole remedy and without additional charge use its reasonable efforts to correct such error or shortcoming or alternatively offer Customer a proportional reduction in the fees charged for the relevant Consultancy Services.
7. CONSULTANCY SERVICES – MODIFICATION SERVICES
7.1. Modification: If CareerTracker agrees to make a Modification on request of a Customer which includes changes to the software code of a pre-existing standard SaaS, the such Modification will, unless expressly otherwise agreed in the Order, be implemented by CareerTracker in generally distributed standard updates of the SaaS Service. CareerTracker decides in which update of the SaaS Service the Modification will be included, which may not be the first update released by CareerTracker after the Modification is agreed to be developed for Customer. The update of the SaaS Service containing the enhancement is also covered by the Support Services procured by Customer for such SaaS Service under the same terms unless expressly otherwise agreed in the Order for the creation of such Modification.
7.2. License Modification: Customer will be granted a license for the changed software code for the Modification subject to the same license terms as are applicable to the SaaS Services. Customer will not acquire any Intellectual Property Rights or rights to exclusivity in any SaaS Service, any Documentation or any Modification developed by CareerTracker or a third party engaged by CareerTracker, including those paid for, suggested or requested to be developed by Customer.
7.3. Acceptance of Modification: Within 14 days from delivery of a Modification by CareerTracker to Customer, Customer will perform testing to establish that the delivered Modification operates and performs in accordance with the agreed upon specifications for the Modification. If it becomes apparent that the SaaS Service as changed by the Modification contains Defects or Functional Deviations, the Customer shall report the test results to CareerTracker in writing, with sufficient detail to enable CareerTracker to reproduce and address the reported Technical Error or Functional Deviations. CareerTracker will use its reasonable commercial efforts to remedy the reported Technical Error or Functional Deviation and subsequently make the Modification available for a renewed test by Customer. In case Customer has not reported a Technical Error or Functional Deviations in performed Modification within 14 days (or such other acceptance period as agreed in the Order) after delivery of the Modification and/or has started operational use of the Customer Software, it shall be deemed to be accepted by Customer.
7.4. Minor issues do not block acceptance: Minor Defects or Functional Deviations which, by their nature and/or number, do not prevent the start of operational use by Customer of SaaS Service and/or the start of the delivery of subsequent Services (e.g. next phase in implementing Modifications), will not prevent acceptance, without prejudice to CareerTracker obligation to correct such minor Defects or Functional Deviations.
7.5. Warranty Modification: For a period of 8 weeks following the date the relevant Modification is accepted by Customer, CareerTracker will correct (subject to the conditions of clause 5.4 above and under the commercial terms agreed in the Order): (i) Defects; and (ii) Functional Deviations, which Customer could not reasonably have identified at the time of the acceptance of the Modification.
8. DATA PROTECTION (PRIVACY) COMMITMENTS
8.1. Commitment to comply to privacy laws: Each party will ensure compliance of its activities to the applicable privacy laws in using respectively providing the Services. Where CareerTracker processes personal data for Customer while performing the Services, it will act as data processor under the direction and responsibility of Customer as controller in accordance with EU Privacy Directive 95/46 and its implementation in Dutch law and any future applicable privacy laws in the Netherlands. CareerTracker will only use Customer Data (including personal data embedded therein) for the purposes of providing the agreed Services in accordance with the agreed instructions of Customer with respect to such Services. Customer will at all times ensure compliance with applicable data protection laws when using the Services and when instructing CareerTracker in providing the Services to Customer or sending Customer Data to CareerTracker for processing. In any case Customer shall ensure messages sent by or with the aid of a SaaS Service, contain all relevant mandatory statements and disclosures to the recipient as prescribed by applicable law, including (where applicable) information about the sender, instructions on how the recipient can ‘opt-out’ from subsequent messages and a link to Customer’s privacy policy.
8.2. Security commitment: CareerTracker will secure the SaaS Services and the Customer Data stored and processed via the SaaS Services with appropriate technical and procedural measures as further identified in the Support. Customer is responsible to verify the level of security committed to be provided is appropriate for the Customer Data it from time to time wishes to process by means of the SaaS Service. Upgrades of security measures to meet increased or changed requirements compared to those expressly agreed in the Order or the relevant Support SLA may be separately charged (provided no upgrade or change chargeable to Customer will be implemented without its express approval of the related costs).
8.3. Ultimate responsibility: With respect to applicable privacy and other laws CareerTracker may share prior experiences and perceived market practices in respect of the use of the SaaS Services, but this is done expressly without accepting any liability or responsibility with respect to the regulatory or legal aspects. CareerTracker is not a legal advisor or law firm and the ultimate responsibility for ensuring compliance to applicable laws in using the SaaS Services (and in particular obtaining relevant consents from persons whose personal data may be used and processed by means of the Services by or on behalf of Customer) is and remains at all times with Customer. For the avoidance of doubt, changes to the functionality of a SaaS Service as may be required by Customer to enable Customer to comply with applicable law (including privacy laws) is not included in agreed fees for Support Services, the agreed fees for Consultancy Services to develop Modifications or in the license fees for standard SaaS Services.
9. PRICE AND PAYMENT
9.1. Taxes and costs: All prices of CareerTracker are, unless explicitly otherwise agreed, exclusive of turnover tax (VAT) and other taxes, levies or duties imposed by governmental authorities. Pricing of Services is excluding applicable transportation, travel and accommodation costs. These costs will be charged separately as incurred to provide the agreed Services unless explicitly otherwise agreed in the relevant Order for the relevant Services.
9.2. SaaS Services fees: Unless otherwise agreed in the Order, the fees payable for the use of the SaaS Services is based on the number of Users for which the SaaS Service is used per year and upfront by Customer. The applicable fee per User is as agreed in the Order or as set out in the CareerTracker price list as referred to in the Order.
9.3. Payment terms: Unless explicitly agreed otherwise in the relevant Order the following payment terms apply for the Services: The subscription fees for SaaS Services become payable monthly in advance after the first year of an agreement. Fees for Consultancy Services are payable in accordance with the payment schedule set out in the Order or in absence thereof, monthly in arrears on the basis of actual hours spent in the past month. The Customer shall pay each invoice within thirty days after the invoice date. The Customer shall not be entitled to set off any counterclaims or to suspend payment of an invoice.
9.4. Late payment consequences: In case of late payment, CareerTracker can charge the Customer the applicable Dutch statutory interest rate for trade agreements to the outstanding amount. CareerTracker may further suspend Services until full payment is received. If after the Customer has been given written notice of non-payment by CareerTracker, the Customer persists in not paying the invoice, CareerTracker shall be entitled to engage third parties in obtaining payment from the Customer and charge the related costs to the Customer.
9.5. Pricing: For SaaS Services, the pricing in the Order is valid for the initial subscription term of the SaaS Services as specified in the Order. In case of renewal of the term of SaaS Services, the then current standard prices for the SaaS Services as published by CareerTracker on its website or notified by CareerTracker to the Customer in writing at least 90 days prior to the next renewal will be applicable to the SaaS Services as of the date of renewal. CareerTracker may further change the pricing of the SaaS Services during the term of an Order in case the applicable pricing as charged by a third party data provider to CareerTracker is materially changed. Any such interim change to pricing may only serve to pass on (without additional margin or mark-up for CareerTracker) of any such third party imposed pricing increase for the use of the relevant data source. Customer may in case of such interim price increase early terminate the Order for the SaaS Services per the date such price change takes effect.
10. LIMITATION OF LIABILITY
10.1. Liability limit direct damage: The total liability of CareerTracker under any Order for breach of contract, tort or under any other legal theory in any calendar year is limited to an amount equal to 50% of the total fees actually paid by Customer to CareerTracker during the previous full calendar year under the Order (or if no Services were provided in the previous calendar year to Customer under the Order, the total fees paid in the initial 6 months of the term of the Order).
10.2. Exclusion liability indirect damage: CareerTracker shall not be liable towards Customer or towards third parties for any consequential or incidental damage, damage to data, lost turnover, lost profits, lost savings or damage to good name, whether such damages arise under a tort, contract or other claim, even if CareerTracker has been informed of the possibility of such damages.
10.3. No limitation: The limitations mentioned in the preceding paragraphs of this clause shall not apply if and insofar as the damage or injury are the result of intentional misconduct or gross negligence of CareerTracker.
10.4. Employees and subcontractors: The provisions in this clause shall also apply for the benefit of the employees of CareerTracker and of the subcontractors and licensors utilized by CareerTracker in executing its obligations toward the Customer.
10.5. Third party claims: The Customer will indemnify and hold CareerTracker harmless from any third-party claims and related reasonable legal costs caused by or related to Customer’s use of the SaaS Services, expressly including but not limited to any claim from any third party caused by a violation of such third party’s rights or of applicable privacy or other laws by Customer in using the SaaS Services. CareerTracker will indemnify Customer from any third party claims and related reasonable legal costs caused by the SaaS Services infringing any third party intellectual property rights, in accordance with clause 13 below.
11. TERMINATION
11.1. Term and renewal of SaaS Services: The right for Customer to use the SaaS Services is granted for the relevant subscription period as set out in the Order. If no subscription period is specified in the Order, the initial subscription period is one year starting on the date the SaaS Services are first made available for use to Customer, after which the subscription is automatically renewed for additional one year periods until either party gives at least 60 days prior written notice of its desire not to renew the SaaS Services. For pricing for the SaaS Services based on estimated yearly usage volumes, Customer may for subsequent renewal periods change the applicable estimated yearly volume on which invoicing will be based, by giving 60 days written notice to AppCert prior to the start of the next renewal period.
11.2. Term of Order for Consultancy Services: The applicable term of an Order with respect to Consultancy Services will be as agreed in each Order. Orders for one-time activities will automatically terminate when all Consultancy Services agreed have been provided by CareerTracker and paid for by Customer. Orders for recurring or on-going Consultancy Services will specify the initial and renewal terms and in absence of any explicit initial and renewal term, will be deemed to have been agreed for an initial term of one year with subsequent renewals for additional one-year terms until either party gives at least 90 days prior written notice of its intent not to renew the Consultancy Services for an additional one-year term.
11.3. Termination rights, both parties: A party may terminate an Order by giving written notice to the other party in the following circumstances:
a. if the other party violates an obligation under an Order and does not remedy such violation within a reasonable period of at least 30 days set by the other party in a written notice of default sent by registered mail to the defaulting party; or
b. if the other party is declared bankrupt or a receiver is appointed to administer its assets or otherwise becomes unable to satisfy its debts when due.
11.4. SaaS Services Discontinuation: CareerTracker may early terminate the then current term of a subscription for SaaS Services and the related Orders in case AppCert decides to end support for the relevant type of SaaS Service for all its customers. CareerTracker will in such case use its reasonable effort to provide at least [6 months] prior notice of such termination. AppCert will in such case refund any prepaid fees for the SaaS Services for the period after the date of actual termination of the SaaS Services. Where possible CareerTracker will offer a migration path for Customer to alternative SaaS Services replacing the terminated SaaS Services which Customer will be free to accept or reject.
11.5. Consequences of termination: Upon termination or expiration (for whatever reason) of an Order all amounts owed under such Order shall immediately become fully due to be paid, including for SaaS Services subscription fees that would have become due for the remainder of the agreed initial term of the subscription period for the SaaS Services. No refunds are provided for prepaid amounts for Services, except in case the Order was justly terminated by the Customer for an uncured default of CareerTracker or where CareerTracker early terminates pre-paid SaaS Services as per clause 11.4 above.
12. IP RIGHTS
12.1. Ownership SaaS Services: All Intellectual Property Rights in or related to the SaaS Services, including all its components such as the underlying software, the data made available via the SaaS Services, the embedded knowhow, images, texts, process flows and algorithms, and any modifications to the SaaS Services (including those suggested or requested to be made by Customer (but excluding any Customer Data) are and will remain to be fully and wholly owned by CareerTracker and its licensors. The only usage rights with respect to the SaaS Services and the CareerTracker Data
12.2. Ownership Customer Data: All data which Customer uploads in the SaaS Services or sends to the SaaS Services or gathers from its relations via the SaaS Services, expressly including, but not limited to messages texts, Customer logo’s, Customer house style elements uploaded to the SaaS Services are considered “Customer Data” and are and will remain to be fully and wholly owned by Customer and its licensors. CareerTracker will not use the Customer Data for any other purpose then to provide the Services to Customer, to manage maintain and improve the Services and to comply with applicable laws.
12.3. Ownership CareerTracker Data: Customer Data expressly does not include CareerTracker Data. All CareerTracker Data is licensed for use by the Customer only as part of the licensed use of the SaaS Services and subject to the license terms applicable to the SaaS Services and (if applicable) the specific additional license terms applicable to the use of the relevant CareerTracker Data. Where CareerTracker Data is mixed with, based on or linked to Customer, then this will not affect the rights of either Party with respect to its data (so CareerTracker does not get as a result any ownership or usage rights in such linked or mixed Customer Data and Customer does not get any ownership or usage rights in the CareerTracker data as the result thereof). Customer is expressly not licensed to share CareerTracker Data with third parties (e.g. to send messages to third parties holding
13. IP INDEMNITY
13.1. IP indemnity commitment: As far as CareerTracker is aware, the Services do not infringe upon any third party Intellectual Property Rights when used in accordance with the applicable terms. CareerTracker shall, as sole and exclusive remedy, defend the Customer at its expense against any claim from a third party that the use of the CareerTracker Services by the Customer infringes any third party’s Intellectual Property Rights (IP Claim).
13.2. Conditions for IP indemnity: CareerTracker shall pay all costs, damages, and attorney’s fees that a court finally awards as a result of an IP Claim or make all payments related to a settlement agreed by CareerTracker with such third party concerning the IP Claim, provided that:
a. Such IP Claim is not in any way caused by any Customer Data or any act or omission of Customer;
b. Customer promptly notifies CareerTracker in writing of such IP Claim; and
c. allows CareerTracker to control, and fully cooperates with CareerTracker in, the defense against, such IP Claim and any related settlement negotiations.
13.3. Resolving infringement: If an IP Claim is made or in the reasonable opinion of CareerTracker is likely to be made then, at CareerTracker option:
a. CareerTracker will procure a license from the holder of the relevant Intellectual Property Rights to enable the Customer to continue to use the Services; or
b. CareerTracker will replace the relevant part to the Services with a modified version thereof, which does not infringe the third party Intellectual Property Rights; or
c. CareerTracker may terminate the relevant Order against a proportional repayment of the fees pre-paid by the Customer for unused portions of the Services.
14. CONFIDENTIALITY
14.1. Confidentiality commitment: Each party (Recipient) undertakes to the other party (the Disclosing Party) to treat as confidential all information in any medium or format (whether marked “confidential” or not) which the Recipient receives from the Disclosing Party either directly or indirectly which concerns the business, operations, software, or customers of the Disclosing Party and which can reasonably be deemed to be of a confidential nature (Confidential Information). The contents and existence of this Agreement is considered Confidential Information.
14.2. Usage restriction: The Recipient may only use the Confidential Information for the purposes of performing the activities set out in this Agreement. The Recipient may only provide its employees, directors, subcontractors, and professional advisers (Permitted Users) with access to the Confidential Information on a strict “need-to-know” basis for this purpose. The Recipient shall ensure that each of its Permitted Users is bound to hold all Confidential Information in confidence. Where a Permitted User is not an employee or director of the Recipient (and is not under a professional duty to protect confidentiality) the Recipient shall ensure that the Permitted User shall enter into a written confidentiality undertaking with the Recipient on substantially equivalent terms to this clause.
14.3. Exclusions: This clause 14, shall not apply to any information which:
a. is in or subsequently enters the public domain other than as a result of a breach of this clause 14;
b. has been or is subsequently received by the Recipient from a third party which is under no confidentiality obligation in respect of that information; or
c. is required to be disclosed to any competent governmental or regulatory authority.
15. MISCELLANEOUS
15.1. Rejection of third party purchasing terms: The applicability of the Customer’s purchasing or other general terms and conditions is expressly rejected. If the Customer accepts an Offer or requested an offer with reference to additional or deviating terms or conditions of Customer (such as purchasing terms of the Customer), then such deviating or additional terms shall not apply between the parties unless these are explicitly accepted in a written statement issued and signed by an authorized representative of CareerTracker. In any case the terms of the Offer itself, including these general terms and conditions, shall take precedence over any deviating terms and conditions of the Customer.
15.2. Verification: During the term of the Order and for a period of one (1) year thereafter, upon CareerTracker written request, CareerTracker and/or CareerTracker licensors of Third party Tools used by Customer will be provided reasonable access during Customer’s normal business hours to examine the Customer’s records and computer equipment that are related to Customer’s use of the SaaS Services for the purpose of verifying the Customer’s compliance to the agreed license terms. Any such verification will be conducted in a manner so as to not unreasonably interfere with Customer’s business operations; and any information received as a result of such verification will be kept confidential by CareerTracker and the auditor except as may be necessary for CareerTracker and its licensors to enforce their rights.
15.3. Applicable law: These terms and conditions and all agreements to which they apply shall be governed by the laws of the Netherlands.
15.4. Dispute resolution: All disputes arising in connection these terms or any agreement they are applicable to, shall be submitted to the exclusive jurisdiction of the competent courts of Amsterdam the Netherlands.
15.5. Settlement commitment: No legal proceedings shall be started, except if for immediate injunctive relief, until after the party which wishes to start such legal proceedings has in good faith attempted to settle the dispute out of court.