Dated : 11/01/2021
The users using the Platform (the “Users”) (“You”), (“Recruiter”), (“Employer”) expressly acknowledge having read the Terms and agree without reservation before subscribing on www.clincher.com. You agree that by clicking “Step inside”, “Count me in”, “Sign Up” “See More” or similar, registering, accessing or using our Services, you are agreeing to enter into a legally binding contract with Clinsher (even if you are using our Services on behalf of a company). If you do not agree to this Terms do not access or otherwise use any of our Services. If you wish to terminate this Terms, at any time you can do so by closing your account and no longer accessing or using our Services.
When you register on the Platform you become a user. If you have chosen not to register for our Services, you may access certain features as a visitor (“Visitor”).
By accepting these Terms, you warrant that you have the full capacity, with full right, power and authority to enter into and perform an agreement with Us to use our Services, and are duly authorised to bind the party for whom you act.
Clinsher offers the clincher.com platform (the “Platform”) for your business purposes only. To register for an Account or use the Platform, you must, and hereby represent that you: (a) are an employee or agent of and authorized to act for and bind an independent business (whether it be as a self-employed individual/sole proprietor or as a corporation, limited liability company, or other entity); (b) will use the Platform for business purposes only; (c) will comply with any licensing, registration, or other requirements with respect to your business, or the business for which you are acting; and (d) are either a legal entity or an individual who is 18 years or older (or have otherwise reached the age of majority in the jurisdiction in which you conduct business) in each case who can form legally binding contracts.
The terms “Clinsher”, “We”, “Us” or “Our” refer to the owner of the Platform.
The Terms “You”, “Recruiter” as applicable and/or “Employer” as applicable refers to the Visitor or to the User.
For the avoidance of doubt Clinsher is providing a Platform to connect Users between them for the purpose of these Terms. Clinsher does not actively introduce Recruiters with Employers. Employers are responsible for selecting the Recruiters they would like to collaborate with. When an Employer and a Recruiter are willing to work together, they are entering into a service contract which is by default the Standard Service Agreement. In case the Users have chosen not to use the Standard Service Agreement but, in the meantime, no other agreements have been agreed on at the time of the collaboration, the Standard Service Agreement applies by default. The Users are free to agree to the Standard Service Agreement or to different or additional terms for their service contract(s). However, users may not, by agreement amongst themselves, alter the rights or responsibilities of the Platform.
For the sake of clarity, Clinsher is not a party to the Standard Service Agreement or any agreement contracted between the Users.
1. DEFINITION AND INTERPRETATION
The term “or” is not exclusive. The word “extent” in the phrase “to the extent” shall mean the degree to which a subject or other thing extends, and such phrase shall not mean simply “if”.
Reference to ‘in writing’ and ‘written’ shall include by email.
Any agreement, instrument or Law defined or referred to herein means such agreement, instrument or Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated.
For the purposes of these Terms, the following terms shall have the meanings set out below, and other terms may be otherwise defined herein and/or in its addendums.
Account: By registering on www.clinsher.com as either an Employer or Recruiter, and to be able to use our Services you will need to create an account on the Platform.
Engagement: The act of an Employer accepting a Recruiter’s engagement to provide recruitment services to fill in an Employer’s Vacancy and access to Employer’s identification.
Anticipated Salary Package: means the annual anticipated gross remuneration package for a Placement determined by the Employer for a Vacancy posted on the Platform.
Candidate: means any natural person(s) introduced on the Platform by a Recruiter to the Employer looking for a job or whose profile could be of interest to the Employer for the purpose of these Terms.
Clinsher fees: means the price for our Services as describe on the Website.
Confidential Information: means all oral, written, electronic and/or tangible technical, business and/or any information of whatever kind; including but not limited to any data, reports, interpretations, forecasts, know-how, technology, compositions, plans, strategies, studies, employee information, candidates, intellectual property, company information, suppliers and others, marketing arrangements, strategic partnerships. Confidential information shall also include any other document or information which comes into the recipient possession as a result of these Terms.
Data Protection Laws: The EU General Data Protection Regulation 2016/679 (“GDPR”), the Data Protection Act 2018 and any applicable statutory or regulatory provision, as amended or updated from time to time, and all European Directives and regulations in force from time to time relating to the protection and transfer of personal data.
Employer: means a natural person or corporate body and its employees as applicable to whom that uses the Platform Services for the purpose of finding Recruiters to hire Candidates.
Employer Confirmation: means the confirmation from the Employer on the Platform or by any other means that a Candidate introduced by a Recruiter using the Platform has been employed.
Engagement: The act of an Employer accepting a Recruiter’s request to engage on the Employer’s Vacancy on the Platform, to allow the Recruiter to see the full Vacancy details and submit Candidate(s) to the Vacancy.
Introduction: means a Candidate being introduced by a Recruiter to an Employer on the Platform.
Introduction Date: Date of which the CV has been sent to the Employer by the Recruiter.
Permanent Placement: means a position to which a Candidate may be appointed or is appointed on a Permanent basis with the Employer via the Platform.
Newsletter: Service offered by Clinsher following the posting of a vacancy on the Website. Each week the Employer receives one or more candidate Newsletters from Recruiters in connection with their vacancies.
Placement: means a permanent basis employment following the introduction of a Candidate by a Recruiter via the Platform, directly or indirectly.
Placement Date: means the Candidate’s employment commencement date with the Employer.
Placement Fee: means the fixed placement fee determined by a Recruiter for a specific Vacancy on the Platform and payable to the Recruiter. The placement fee should be a fixed fee not a percentage fee.
Placement Fee Period: The period a Recruiter is deemed to have ownership of a Candidate which shall be six months from the date of submission of such Candidate’s CV on the Platform.
Platform: means www.clinsher.com website in which an Employer and a Recruiter may interact and connect for the purposes of these Terms.
Vacancy: means a permanent basis vacant position posted by an Employer on the Platform.
Recruiter Any natural person or corporate body who provides recruitment services on the Platform to Employers in respect of any Vacancies.
Shortlisted Candidates: means all the candidates selected by the Recruiter who have expressed in written and or notice their consent to the Recruiter to disclose their personal information to the related Employer who is recruiting for a Vacancy on the Platform. To be qualified as Shortlisted Candidates the Recruiter will have to receive the Candidates’ prior and express consent for the data to be transmitted to the Employer.
2. NO PARTNERSHIP OR JOINT VENTURE
You acknowledge and agree that Clinsher is not a party to any service contract, that the formation of a service contract between Users will not, under any circumstance, create an employment or other service relationship between Clinsher and any Recruiters or a partnership or joint venture between Clinsher and any User. Employer is solely responsible for and has complete discretion for selection of any Recruiters for any Engagement. Users agree that Clinsher has no involvement in and will have no liability arising from or relating to the classification of a Recruiter generally or with regard to a particular Engagement.
You also acknowledge, agree, and understand that Recruiters and Employers are solely responsible for assessing the Users they would like to collaborate with. You further acknowledge and agree that you’re a not an employee of Clinsher. Clinsher does not by any way supervise of control the Recruiters ’ work. Recruiters ’ are free to choose and determine the Vacancies for which they will provide their services. Users agree and acknowledge that Clinsher does not provide Recruiters ’ with premises to perform their work nor provide or guarantee Recruiters ’ with regular salary nor regular payments.
3. YOUR PROFILE
By registering for an Account to join the Platform, you must complete a User profile (“Profile”), which you consent to be shown to other Users and to the public. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Platform or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide any false or misleading information about your identity or location, your business, your skills, or the services your business provides and to correct any such information that is or becomes false or misleading.
4. ACCOUNT TYPES
There are two different Account types. Once you register for one Account type, you can’t add the other account type under the same username and password. For example, you are not allowed to create an Employer account if you have already a Recruiter account. You agree not to have or register for more than one Account without express written permission from us.
The acceptation and/or rejection of a registration on the Platform is at our sole discretion and we may suspend, cancel or block access to our Platform at any time without prior notice if we suspect a breach of these Terms or for any lawful reasons, including supply and demand, cost to maintain data, false or misleading information has been provided in creating, marketing, or maintaining your account information or any other business consideration.
5. ACCOUNT MISREPRESENTATION
You are entirely responsible for safeguarding and maintaining the confidentiality of your login information and agree not to share your username or password with any Third Party. You acknowledge that Clinsher will not be responsible to identify any Third-Party User using your Account without your permission.
6. CLINSHER VERIFICATION
When registering on the Platform for an Account, Clinsher may verify the accuracy of your information, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity, your location, and your ability to act on behalf of your business on Clinsher. You authorize Clinsher to investigate the accuracy of all the information you have provided on the Platform, subject to applicable law. When requested, you must as soon as possible which any information that will help us identify the accuracy of your information to protect the Platform credibility.
7. OBLIGATIONS FOR ALL USERS
You agree that you will not
● publish contain any material which is obscene, offensive, hateful, inflammatory or defamatory of any person;
● promote violence, sexually explicit material or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age;
● infringe any copyright, database right or trademark of any other person;
● be made in breach of any legal duty owed to a third party, such as a contractual duty or a duty of confidence;
● promote any illegal activity;
● be threatening, abuse or invade another’s privacy, or cause annoyance, inconvenience or needless anxiety;
● be likely to harass, upset, embarrass, alarm or annoy any other person;
● Create a false identity on Clinsher, misrepresent your identity, create a User profile for anyone other than yourself (a real person), or use or attempt to use another’s account;
● Develop, support or use software, devices, scripts, robots or any other means or processes (including crawlers, browser plugins and add-ons or any other technology) to scrape the Services or otherwise copy profiles and other data from the Services;
● Override any security feature or bypass or circumvent any access controls or use limits of the Service (such as caps on keyword searches or profile views);
● Copy, use, disclose or distribute any information obtained from the Services, whether directly or through third parties (such as search engines), without the consent of Clinsher;
● Disclose information that you do not have the consent to disclose (such as confidential information of others);
● Violate the intellectual property rights of others, including copyrights, patents, trademarks, trade secrets or other proprietary rights. For example, do not copy or distribute (except through the available sharing functionality) the posts or other content of others without their permission, which they may give by posting under a creative commons license.
a. Violate the intellectual property or other rights of Clinsher, including, without limitation, (i) copying or distributing our technology, unless it is released under open source licenses; (ii) using the word “Clinsher” or our logos in any business name, email, or URL
b. Post anything that contains software viruses, worms, or any other harmful code;
c. Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for the Services or any related technology that is not open source;
d. Rent, lease, loan, trade, sell/re-sell or otherwise monetize the Services or related data or access to the same, without Clinsher’s consent;
e. Use bots or other automated methods to access the Services, add or download contacts, send or redirect messages;
f. Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Services;
g. Overlay or otherwise modify the Services or their appearance (such as by inserting elements into the Services or removing, covering, or obscuring an advertisement included on the Services);
h. Interfere with the operation of, or place an unreasonable load on, the Services (e.g., spam, denial of service attack, viruses, gaming algorithms); and/or
i. Violate the Terms.
All Users should not announce their work to each other, having met on the Clinsher platform, during the tender process or settlement. Not all Users are allowed to add a mark with regard to their relations between themselves. If a user wishes to advertise, create a brand or publicly announce a relationship with another user, after having met on the platform.
If a party is found to be promoting this relationship in any way without Clinsher’s approval, Clinsher has absolute discretion to terminate the account or charge a reasonable fee.
8. OBLIGATIONS AND WARRANTIES OF USER ACTING AS EMPLOYER
The Employer undertakes not to adopt discriminatory behavior when making decisions regarding the possible hiring of a Candidate and in particular, without this list being exhaustive, not to adopt motives related to religious affiliation, physical appearance, gender, ethnicity, sexual orientation, age and/or state of health, etc.
The Employer give consent to Clinsher the diclosure of its identity (name, surname) and contact details (phone number, email address) each time the Employeur accept to connect with a Recruiter on the platform.
The Employer acknowledges and agrees that Clinsher will only reveal its identity and personal information including first name, last name telephone number and email address of the person in charge of the vacancy and company name if the Employer clicks on the button “Interested”.
The Employer acknowledges that Clinsher does not provide any legal contract of employment or any documentary material of any kind to Candidates. It is the Employer’s responsibility to obtain legal advice for any contract required, whether for a fixed term, contractor or permanent staff member.
The Employer agrees to receive a weekly candidate Newsletter presented by Recruiters following the posting of a vacancy on the site. The Employer understands and acknowledges that the candidate Newsletter is not sent as part of a marketing approach but as part of the service expected following the posting of the vacancy. This means that if the Employer no longer wishes to receive candidate Newsletters, it must close its vacancy on the Website. The Employer acknowledges and accepts that it cannot unsubscribe from the candidate Newsletter without closing its online vacancy.
The Employer acknowledges and accepts that it is solely responsible for the information published on the platform and publicly accessible and in fact cannot held Clinsher responsible in the event that its identity is identifiable through clues or any information placed in the published offer. Employers are therefore recommended to publish offers that are not already publicly accessible on other sites if they wish to remain anonymous.
The Employer acknowledges and accepts that by putting a candidate in the favorite list its identity will remain anonymous however the Recruiter who introduced the candidate will know that the candidate has been bookmarked.
The Employer acknowledges and accepts that Clinsher will select questions asked by Recruiters regarding its vacancy posted on the platform. The Employer has the right to give an answer or not.
9. OBLIGATIONS AND WARRANTIES OF USER ACTING AS A RECRUITER
The Recruiter warrants that they are acting in compliance with any applicable laws, regulations or code of conduct at all times.
The Recruiter warrants that he/she will use all reasonable efforts to introduce Candidates via the Platform who are meeting the Employers expectation and agree to Shortlist Candidates in compliance with these Terms.
The Recruiter guarantees to anonymize each Candidate that he or she submits to Employer on the Clinsher platform when filling out the form so that no information relating to the Candidate is considered personal data within the meaning of the GDPR.
The Recruiter guarantees that he or she will make all reasonable efforts to submit via the Platform Candidates who meet the Employers’ expectations and agrees to screen Candidates in accordance with these Terms.
Recruiters are prohibited from registering as an Employer in order to advertise vacancies on the Platform.
Recruiters are responsible for all tax considerations related to payments received from Employers through the Platform and through Clinsher, including, but not limited to (a) determining whether the Recruiter is required by applicable law to issue specific invoices for the Placement Committees and issuing any required invoices; (d) determining any requirement under their applicable law to remit to the appropriate authorities any value added or other similar taxes or fees applicable to the Placement Committees and remitting such taxes or fees to the appropriate authorities, if any.
Recruiters agree and acknowledge that they are not permitted to charge a percentage of the candidate’s annual salary to the Employers for the placement commission. The Placement Fee should only be expressed as a fixed fee, e.g. 8,000 Euros and not 25% of the candidate’s annual salary.
Recruiters agree to only refer to Employers on the platform candidates that are available and motivated to find a new job and who are not fictive.
Recruiters acknowledge and accept that Clinsher cannot be held responsible for any damage resulting from the fact that they introduce a candidate already working for the targeted Employer via the Platform. In the event that Clinsher can identify that a candidate introduced by a Recruiter is already an employee of the targeted Employer, Clinsher will not send the candidat to the Employer and reserves the right to re-credit a CV to the Recruiter at its sole discretion.
Recruiters acknowledge and accept that Clinsher has no obligation, either by way of means or result, to verify that the candidates introduced by Recruiters are already working for the targeted Employers for which the Recruiter introduces the latter.
Recruiters acknowledge and accept that the candidates introduced via the platform must be sent anonymously and that no personal information of third parties should be sent via the platform. In case of default, Clinsher cannot be held liable.
Recruiters acknowledge and accept that Clinsher may refuse (at its sole discretion) to send an anonymous candidate introduced by a Recruiter to an Employer if Clinsher considers (at its sole discretion) that this anonymous candidate does not meet the Employer’s expectations or Clinsher’s criteria. In the latter case Clinsher will re-credit the Recruiter with 1 CV credit.
Recruiters acknowledge and agree that Clinsher reserves the right to select the questions that will be asked to the Employer for a vacancy posted on the Platform and that only the Employer may decide to answer them. Neither Clinsher nor the Employer is under any obligation to answer questions asked by Recruiters via the Platform.
Recruiters acknowledge and accept that the identity of Employers is not disclosed in the briefing. Only the type of company is available. It is only when an Employer accepts a Recruiter that the identity is revealed.
10. CONTRACTUAL RELATIONSHIP
If a Recruiter and an Employer enter into a service agreement for the purpose of recruitment services, the terms of such agreement will apply between them. For the sake of clarity Clinsher is not a party to any service agreement agreed between the Users.
Clinsher will make reasonable efforts if possible to resolve any disputes arising between Recruiters and Employers. However, Clinsher will not and is not obligated to provide any dispute. In the event of such a dispute We will investigate and based upon the available evidence as an independent party make a determination on the source of the Candidate Introduction that led to the Engagement, and therefore whether a Placement Fee shall be charged.
11. NO WARRANTY
CLINSHER AND ITS AFFILIATES MAKE NO REPRESENTATION OR WARRANTY ABOUT THE PLATFORM SERVICES, INCLUDING ANY REPRESENTATION THAT THE PLATFORM SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, AND PROVIDE THE PLATFORM SERVICES (INCLUDING CONTENT AND INFORMATION) ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, CLINSHER AND ITS AFFILIATES DISCLAIM ANY IMPLIED OR STATUTORY WARRANTY, INCLUDING ANY IMPLIED WARRANTY OF TITLE, ACCURACY OF DATA, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
If a User is in “default” of payment, Clinsher reserves the right to temporarily or permanently close the User’s Account and revoke the User’s access to the Platform and Services, including the Recruiter’s authorization to use the Platform to process any additional payments. However, the Recruiter will remain liable for any amount that accumulates with respect to the Services offered on the Platform
13. LIMITATION OF LIABILITY
This does not affect our liability for death or personal injury arising from negligence, nor any liability for fraudulent misrepresentations, nor any other liability which cannot be excluded or limited under applicable law. The Employer and the Recruiter agree to indemnify Clinsher from all claims, costs and expenses (including legal expenses) resulting from their breach of these Terms.
Clinsher does not generally investigate any remarks User comments, User ratings, indicators of User satisfaction, and other feedback or any other user content (“User Content”) left exclusively by Users or other User Content for accuracy or reliability and does not guarantee that User Content is accurate. You are solely responsible for your User Content, including the accuracy of any User Content, and are solely responsible for any legal action that may be instituted by other Users or third parties as a result of or in connection with your User Content. Clinsher is not legally responsible for any feedback or comments posted or made available on the Platform by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, Clinsher reserves the right (but is under no obligation) to remove posted feedback or information that, in Clinsher’s sole judgment, violates the Platform services or negatively affects our Platform, diminishes the integrity of the feedback system or otherwise is inconsistent with the business interests of Clinsher you acknowledge and agree that you will notify Clinsher of any error or inaccurate statement in your feedback results, and that if you do not do so, Clinsher may rely on the accuracy of such information.
You acknowledge and agree, that Clinsher is not a party to any agreements contracted between the Recruiter and the Employer. Users are entirely responsible for (a) ensuring the accuracy and legality of any information provided on the Platform, (b) assessing the suitability of other Users for a collaboration (c) negotiating, agreeing to, and executing any agreements between them, (d) performing Recruiter services, or (e) paying Recruiter services. Clinsher does not make any representations about or guarantee the truth or accuracy of any Recruiter’s or Employer’s information, content on the Platform.
Clinsher is not responsible and does not bear any responsibility for any consequence of using the Standard Service Agreement. The Standard Service Agreement does not constitute legal advice nor constitute advertising or a solicitation of any type. Each situation and requirements vary case by case and jurisdiction. Hence, Clinsher recommendation is to seek and advice from licensed attorney in the relevant jurisdictions. Clinsher expressly disclaims any and all liability with respect to actions or omissions based on the Standard Service Agreement.
Those who access or use the Platform from other jurisdictions do so at their own risk and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations.
Users may agree to any terms they deem appropriate regarding this provision. If and to the extent that the Users do not enter into different agreement between them, then they agree that this Section (Confidentiality) applies. To the extent, a User provides Confidential Information to the other, the recipient will protect the secrecy of the discloser’s Confidential Information with the same degree of care as it uses to protect its own Confidential Information, but in no event with less than due care. On a User’s written request, the Recipient shall promptly return to the Discloser or destroy all documents and papers relating to the Discloser, including any Confidential Information, together with any copies thereof.
15. ACCESS ACCOUNT
Clinsher can’t guarantee access to your Account on the Platform and it may close at any time without notice. You must take reasonable steps to ensure the confidentiality of your credentials.
By using our Platform and with your express written consent all Users give Clinsher permission to disclose our business relationship to other parties to promote our provenance. This includes (but is not limited to) your company name, logo, testimonials and any written or verbal communication.
17. VAT AND OHER TAXES
Clinsher may be required by applicable law to collect taxes, including without limitation, withholding income tax or VAT in the jurisdiction of the Recruiter. Hence, any amounts Clinsher is required to collect or withhold for the payment of any such taxes shall be collected in addition to the fees owed to Clinsher under the Terms.
Each notice and other communication shall be in writing and shall be delivered to the other party at its registered office or its principal place of business or email address that party might have specified to the other party in writing.
Clinsher may, at its sole discretion, modify the present conditions at any time by publishing a revised version on the platform. Clinsher will inform you of any modification involving a substantial change by publishing the updated conditions on the platform, by posting a notice on the platform and/or by sending you a notice by email. If the substantial change includes an increase in the price of its Services, Clinsher will provide at least 15 non-business days’ notice from the date of notification, but cannot provide any notice for changes resulting in a price reduction or any change implemented in favor of or not affecting the rights and obligations of Users. Any revisions to the terms and conditions will take effect on the effective date. You understand that by using our Services after the effective date as defined above, you agree to be bound by these Terms.
– Our rights to use and disclose your feedback;
– Members and/or Visitors’ rights to further re-share content and information you shared through the Services;
– Any amounts owed by either Party prior to termination remain owed after termination.
23. ENTIRE AGREEMENT
24. FORCE MAJEURE
The Parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder for a reasonable period due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government, virus, governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party.
25. ACCOUNT CLOSURE
Except as otherwise required by law, if your Account is closed for any reason, you will no longer have access to data, messages, files, or other material you keep on the Platform and that that any closure of your Account may involve deletion of any content stored in your Account for which Clinsher will have no liability whatsoever. Clinsher, in its sole discretion and as permitted or required by law, may retain some or all of your Account information.
26. GOVERNING LAW AND JURISDICTION