STAKHA, a company registered under the laws of France under the number 889 236 451 000 15 R.C.S. Nanterre with registered offices at 21 Parc de la Bérengère 92210 Saint-Cloud, owns and manages a recruiting platform named STAKHA (hereinafter “STAKHA”). The Customer wishes the use of STAKHA to hire specific personnel in the field of digital development. The present Terms of services (hereinafter “the ToS”) constitute the entire agreement between STAKHA and the Customer (hereinafter “the Agreement”) in relation to the provision of the Services and Platform. STAKHA and the Customer are each individually referred to as a "Party" and are collectively referred to as the "Parties".
In the ToS, the following terms shall have the following meanings ascribed to them:
1.1 Annual Income. The yearly remuneration that shall be received by the Candidate according to the Collaboration Agreement signed with the Customer. The Annual Income includes the Candidate's base remuneration, as well as any commissions and/or guaranteed bonuses, the amount or calculation method of which shall be determined at the latest on the date of the Collaboration Agreement’s signature. In case the chosen candidate is a freelance or works through a company, The Annual Income is equal to the 12 months’ expected billing.
1.2 Business Day: any day from Monday to Friday inclusive, excluding public holidays in France.
1.3 Candidate: Any jobseeker represented by himself, or by a company (e.g. Freelancers) having registered on STAKHA and having successfully passed STAKHA’s approval test.
1.4 Collaboration Agreement: Any agreement between the Customer and a Candidate by which they intend to regulate their professional collaboration.
1.5 Commission: amount to be paid to STAKHA by the Customer, each time a Collaboration Agreement is signed with a Candidate.
1.6 Confidential Information: all information of a confidential nature of STAKHA or the Customer disclosed by whatever means, directly or indirectly, intentionally or unintentionally, whether before or after the Agreement becomes effective, including any trade secrets, information relating to the Intellectual Property Rights, system(s), know-how, products or services, operations, processes, plans, product information, market opportunities or business affairs of the person/entity making the disclosure, or which relates to the provision or use of the Services/Platform to or by the Customer and is prepared, devised or written by STAKHA. Information relating to the Parties or their subcontractors, suppliers, customers, clients or other contacts which is disclosed to, or processed or otherwise handled by, either the Customer, or STAKHA, in the course of the performance of their respective obligations under the Agreement as well as in the course of the negotiation, development and conclusion of the Agreement is deemed to be of a confidential nature;
1.7 Customer: any natural person or entity that benefits from STAKHA’s Services in exchange of the payment of Commissions.
1.8 Force Majeure: any delay, execution failure, damage, loss or destruction, or malfunction affecting the provision of the Services and Platform, or any consequence thereof, caused or occasioned by or due to force majeure event, such as, but not limited to, flooding, inclement weather, storms, floods, droughts, fire, earthquakes, destruction by thunderbolts, power outages, explosions, wars, riots, destruction of machinery or equipment, unavailability of means of transport, malfunctions or interruptions in the electrical network or telecommunication, strikes, occupancy of premises, work stoppages, acts or omissions of third parties, or any other cause beyond the reasonable control of each Party preventing the normal performance of the Agreement and which cannot be resolved by reasonable measures ;
1.9 Intellectual Property Rights: all patents, copyrights, design rights, trademark rights, trade name, trade secret, skill, database right, and any other intellectual property right (registered or not) and all applications of these throughout the world;
1.10. Platform: the register of Candidates approved by STKAHA.IO and available at the following address: https://app.stakha.io
1.11. Services: the recruiting services provided by STAKHA as described in the ToS.
2. ToS acceptance and opposability
2.1. By accepting the ToS, the Customer is considered as having agreed on the last version of the ToS.
2.2. The ToS may be amended at any time by STAKHA depending on the evolution of the applicable rules and its own needs. The new ToS apply as soon as they are published on STAKHA’s website, at the following address: https://STAKHA/terms-of-services
3.1. Every time a Collaboration Agreement is signed between the Customer and a Candidate, the Customer shall pay a Commission to STAKHA. This Commission shall be equivalent to 15% of the Candidate’s gross annual income outright, on the date on which the Candidate signs his/her/their employment contract.
3.1.1 This Commission shall be paid even if the Candidate introduced by STAKHA is not selected by the Customer or does not accept the Collaboration Agreement issued by the Customer and subsequently it does enter into business relations with the Customer for such mission or any other mission, whether through an employment contract, a service or sub-contracting agreement, an internship agreement or any agreement intended to govern the performance by the Candidate of a service in return for remuneration, within twelve (12) months following their last exchange on the Website;
3.2. Should the Employment Agreement end within four months after the commencement date of the Employment Agreement(due to for example termination or dissolution), the Customer has a right to a restitution of the Commission paid to STAKHA in the form of credit (the Restitution Credit). The paid Commission will only be restituted for credit when the Customer has given written notification of termination of the Employment Agreement within 10 days after such termination and the Employment Agreement has been terminated for reasons caused by the Candidate.
3.3. STAKHA will send the invoices pertaining to each Commission within 30 days of the Collaboration Agreement’s signature.
3.4. Every invoice sent by STAKHA must be paid within one (1) month from their issue date.
3.5. Any invoice unpaid on its due date will be increased by right and without prior formal notice by a late payment interest of 10% per year. Payment or exchange charges are at the customer's expense.
3.6. When payment is not received within the specified timeframe, STAKHA is allowed to suspend, without warning, the access to the Platform and the provision of Services.
3.7. Any challenge about the invoice(s) must be addressed in writing (by email) to STAKHA within seven (7) Business Days from their issue date. After that period, the invoice(s) will be considered as irrevocably accepted by the Customer.
3.8. The obligations specified in present clause 4 shall survive the termination of Agreement for a duration of one (1) year.
4. Information obligations
4.1. The Customer undertakes to immediately inform STAKHA every time a Collaboration Agreement will be signed with a Candidate.
4.2. The Customer also undertakes to give the following information to STAKHA, as soon as possible: Candidate’s Annual Income; Signature date and duration of the Collaboration Agreement;
4.3. Each time the Customer fails to inform STAKHA about the signature of a Collaboration Agreement, it shall be liable to pay to STAKHA a penalty equivalent to 50% of the Candidate’s Annual Income, without restricting the possibility for STAKHA to claim additional damages from the Customer in breach.
4.4 The obligations specified in present clause 5 shall survive the termination of Agreement for a duration of one (1) year.
4.5 If the Customer introduces the Candidate to another individual/company, irrespective of whether it is a third-party (eg: recommendation platform) and whether or not it is affiliated to its company. It shall be liable to pay to STAKHA a penalty equivalent to 50% of the Candidate’s Annual Income, without restricting the possibility for STAKHA to claim additional damages from the Customer in breach.
5. Scope and provision of the Services
5.1. The Services subject to the Agreement are the ones described in the ToS.
5.2. Except when stated otherwise in the ToS, all materials used in the context of the Services’ provision are sole property of STAKHA. When the provision of the Services requires it, STAKHA may grant to the Customer a non-exclusive license to use such materials for a duration equivalent to the one of the Agreement, unless the ToS states otherwise. This license does not include the right to sublicense, sell or otherwise multiply or disclose the software in any way. The compensation for this licence is encompassed in the Commissions.
6.1. When applicable, STAKHA grants to the Customer a non-exclusive license to use the Platform for a duration equivalent to the one of the Agreement. This license does not include the right to sublicense, sell or otherwise multiply or disclose the software in any way. The compensation for this licence is encompassed in the Commissions.
6.2. STAKHA remains the sole holder of the Intellectual Property Rights on the components composing the Platform. None of these components may be copied or used without the prior written permission of STAKHA, except and to the extent permitted by mandatory law.
6.3. By no means, the signature of the Agreement may be construed as an assignment of any Intellectual Property Right to the Customer.
6.4. STAKHA is not the holder of Intellectual Property Rights pertaining to other software, coding languages, etc. potentially required for the Platform’s proper operation. The licences and other conditions of use specific to these third-party components shall apply, as the case may be. It is the sole responsibility of the Customer to obtain such rights and authorisation pertaining to those components.
6.5. STAKHA reserves the right to momentarily interrupt, suspend or modify the access to the Platform for maintenance or technical reasons. Such occurrences will be announced fourteen (14) days before they take place. STAKHA may by no means be held liable for the potential harm suffered by the Customer due to the temporary unavailability of the Platform due to maintenance operations.
6.6. Customers are encouraged to suggest new features and improvements. The final decision to implement any of the changes is solely up to STAKHA.
7.1 Unless explicitly provided otherwise, all the obligations of STAKHA under the Agreement are obligations of means.
7.2. The timelines potentially communicated by STAKHA are only indicative.
7.3. Each Party shall seek to limit the damage as much as possible, whether resulting from its own failure or the failure of the other Party.
7.4. Except expressly otherwise stated in this Agreement, neither Party shall be liable for any damage beyond the liability cap equal to the amount of the last Commission paid by the Customer to STAKHA.
7.5. No Party limits or excludes its liability for fraud or wilful misconduct.
7.6. Neither Party shall be liable for indirect or consequential damage under or in connection with the Agreement or under or in connection with the Agreement, including without limitation financial damage, commercial loss resulting from the use or impossibility to use the Platform, in whole or in part.
8. Force majeure
8.1. Neither Party shall be liable for any non-performance of its obligations, to the extent that such non-performance was directly caused by a Force Majeure event.
8.2. The Party claiming force majeure shall only be excused provided that it (a) continues to use all reasonable endeavours to limit the effect of non-performance and to recommence performance as soon as possible and (b) immediately notifies the other Party by telephone (to be confirmed in writing within five (5) days of the inception of such non-performance) and describes in reasonable detail the circumstances causing such Force Majeure event and the likely duration of the non-performance. In any such case, the performance of the affected Party’s obligations, to the extent affected by the cause, shall be suspended during the period that the Force Majeure event persists. If performance is not resumed within thirty (30) days after the notice from the affected Party to the other Party, the other Party may terminate this Agreement, immediately and without any compensation, by written notice to the affected Party.
9.1. The Parties agree that the following terms apply when a STAKHA discloses Confidential Information to the Customer and when the Customer discloses Confidential Information to the STAKHA.
9.2. The Parties undertake to treat as confidential all Confidential Information in any medium or format, which they receive from each other.
9.3. The Parties shall use Confidential Information they disclose to each other, process or otherwise handle in the course of the negotiation, development and conclusion of the Agreement for the sole purpose of the negotiation, development and conclusion of the Agreement. The Parties shall not copy or reproduce such Confidential Information in any form whatsoever except as may be strictly necessary for the purposes of the negotiation, development and conclusion of the Agreement.
9.4. The Parties shall in addition:
a) use the utmost care and discretion to avoid disclosure, publication, or dissemination of Confidential Information;
b) use Confidential Information only for the purpose for which it was disclosed under the Agreement;
c) observe a general obligation of discretion regarding the information received from each other;
d) ensure that their personnel, affiliates, directors, officers, agents who will be working on the provision of the Services/Platform are bound by all obligations of confidentiality under this clause 10 ;
e) keep secret and preserve the confidentiality of all Confidential Information disclosed to them;f) ensure that access to Confidential Information is limited to directors, officers, employees and professional advisors who reasonably need to know the Confidential Information to carry out the proper execution of the Agreement; and
g) be liable for any breach of this clause by any of their directors, officers, personnel or professional advisors.
9.5. A Party shall not disclose, publish, or disseminate the terms of the Agreement without the prior written consent of the other Party, except to the extent permitted by this clause.
9.6 The Parties shall protect Confidential Information for as long as the Confidential Information is in their possession, without the possibility of contractual waiver or limitation.
9.7. When the Confidential Information is no longer regarded as relevant, upon request from a Party, and upon termination of the Agreement, the other Party shall promptly return all Confidential Information, or any item thereof if such is requested, having come into the other Party's possession as a part or result of the Agreement. Upon request by a Party and in any case upon termination of the Agreement, the other Party shall destroy or cause to be destroyed all Confidential Information. In these cases, that Party shall confirm in writing that it has destroyed all Confidential Information and provide an up-to-date list of destroyed materials.
9.8. Except to the extent and for the duration required in order for the Parties to comply with their obligations under the Agreement, nothing in this clause shall be construed so as to grant to a Party any right, whether by ownership, license or otherwise, in the Intellectual Property Rights of the other Party.
9.9. This clause shall not apply to any information which:
a) is or becomes generally available to the public other than as a result of a breach of this clause;
b) is acquired from a third party owing no confidentiality obligation to a Party, in respect of that information, where the use or disclosure accords with rights lawfully granted by that third party;
c) is independently developed by a Party without use of the other Party's Confidential Information as evidenced by written records;
d) is already known by the other Party at the time of its receipt, as evidenced by its written records; or
e) a Party is required by any applicable legislation to disclose, provided always that a Party should, to the extent reasonably possible whilst complying with the applicable legislation, notify the other Party of such requirements prior to any such disclosure and provide the notified Party with a reasonable opportunity to contest the requirement to disclose the information or to limit the extent of the disclosure.
10. Processing of personal data
10.1. Each Party Parties shall comply with all data protection and privacy laws applicable to it and shall not, by any act or omission, put the other Party in breach of any data protection or privacy laws (in so far as such laws are applicable to the said other Party) in connection with the Agreement. All the terms which are not defined in the present provision have to be understood in accordance with the relevant European Union legislation on data protection.
10.2. Personal data relating to either Party staff (name, surname, position, contact details) are processed by the other Party in accordance with the General Data Protection Regulation (GDPR) and any applicable implementation rules for the needs of the performance of the Agreement:
a) to enable the performance of the Agreement and its follow-up by both Parties, including invoicing and payment;b) to enable each Party relevant staff to contact the other Party relevant staff, as required for the proper performance of the Agreement. The provision of the personal data relating to the other Party staff is a requirement for entering and performing the Agreement. Personal data relating to the other Party staff can also be processed by each Party based on its legitimate interest to run its usual business: a) for security reasons and to prevent fraud,
b) for internal monitoring of the Agreement performance,
c) to inform the other Party staff on and/or request consent for any possible additional purpose of processing.
Where strictly necessary, the personal data relating to the other Party staff may be communicated to the following third-parties:
a) the group to which belongs the concerned Party, for monitoring and reporting purposes,
b) La Poste or any similar company in charge of delivery of letters or parcels, the public administrations in charge of tax and social security, the accountants of the Parties, to ensure compliance with the concerned Party legal obligations.
The personal data relating to the other Party staff shall be stored for no longer than ten (10) years after the termination of the Agreement.
Any transfer of the personal data relating to the other Party staff outside of the European Union is subject to the strict compliance with the requirements set forth in the GDPR, i.e. implementation of all appropriate measures through the signature of a contract with the recipient, based on the standard clauses edited by the European Commission (this contract being available for review at the head office of the concerned Party).
For any GDPR related enquiry, each Party can be contacted as follows:
a) for STAKHA : contact@STAKHA
for the Customer: the email address specified when accepting the ToS;
Each Party or its staff may (upon request dated and signed sent by email to the other Party with the proof of the data subject identity) obtain, free of charge if it is a reasonable volume, the written communication of processed personal data and the portability of the data, as well as, where appropriate, rectification, restriction of processing, deletion of those which are inaccurate, incomplete or irrelevant. The application is considered as dismisses where no action has been taken on the application within thirty (30) days of the request. You may apply to or lodge a complaint with the French Data Protection Authority (Commission Nationale de l'Informatique et des Libertés – CNIL) with the following address : 3 Place de Fontenoy, 75334 Paris (Tel. + 33 (0)22.214.171.124.22 – Fax +33 (0)126.96.36.199.00)
11. Term and termination
11.1. The Agreement begins when the ToS are accepted by the Customer.
11.2. The Agreement is concluded for an indefinite duration.
11.3. Each Party may end the Agreement while taking into account a one (1) month notice period, which starts on the reception date of its written notice by the other Party.
11.4. In derogation of clause 12.3, each Party may:
a) Insofar as legally possible, and without prejudice to its other rights or remedies, terminate the Agreement with immediate effect (without necessity for judicial action) by written notice to the other Party in the event the other Party becomes insolvent, applies for bankruptcy, or an order is made or a resolution passed for the bankruptcy, liquidation, administration, winding-up or dissolution of the other Party, or a trustee, liquidator, administrator or similar officer is appointed over all or any substantial part of the assets of the other Party, or anything similar to the foregoing occurs.
b) Without prejudice to its other rights or remedies, terminate the Agreement with immediate effect (without necessity for judicial action) by written notice to the other Party in the event that this Party is in material breach of the Agreement and either that breach is not capable of remedy or, if the breach is capable of remedy, the Party in breach has failed to remedy the breach within thirty (30) days after receiving written notice of default requiring it to do so.
12. Interpretation of the ToS
12.1. Except when stated otherwise, the plurals terms encompass the singular terms and conversely.
12.2. The terms which are not defined in clause 1 are to be understood in their common sense.
12.3. Express when stated otherwise, the enumerations are never limitative.
13.1. If any provision or part of provision of the ToS is held to be invalid, illegal, or unenforceable, the remaining provisions of ToS or parts thereof will not in any way be affected or impaired, and the invalid, illegal, or unenforceable provision or part thereof will be restated to reflect the original intentions of the Parties as nearly as possible in accordance with applicable legislation and preserving to the fullest extent possible the intent and agreements of the Parties as set forth in the Agreement.
13.2. Each Party shall use its best effort to immediately negotiate, in good faith, a valid replacement clause which shall preserve intent and agreements.
14. No waiver
14.1. Neither failure to exercise nor any delay in exercising any right, power or remedy by a Party operates as a waiver. A single or partial exercise of any right, power or remedy does not preclude any other or further exercise of that or any other right, power or remedy. A waiver is not valid or binding on the Party granting such waiver unless it is made in writing.
15.1. STAKHA and its employees are independent contractors and nothing in the Agreement shall render them an employee, an agent or partner of the Customer. STAKHA shall not and shall ensure that its employees shall not hold themselves out as such. STAKHA and its employees shall not have any right or power to bind the Customer to any obligation towards any third-party.
15.2. STAKHA is retained or engaged by the Customer only for the purpose of providing the Services and the Platform, to the extent set forth in the Agreement. STAKHA’s relation to the Customer shall, during the term of the Agreement, be that of an independent contractor and as such STAKHA shall be free to dispose of such portion of its time, energy and skill in such a manner as STAKHA sees fit.
15.3. The Agreement shall not establish a joint venture, agency or partnership between the Customer and STAKHA.
STAKHA shall not be considered under the Agreement or otherwise or in any way as having the status of employee or being entitled to participate in any plans, schemes, arrangements or distributions by the Customer pertaining to or in connection with any person, stock, bonus, profit sharing or other benefits provided ordinarily by the Customer to its employees.
16.1. STAKHA shall refrain from contacting the Customer’s employees with the intent to encourage them to register with STAKHA.
16.2. However, STAKHA is unable to prevent any individual to register on the Platform. Therefore, and without prejudice of clause 17.1, if an employee of the Customer registers with STAKHA, STAKHA shall treat this registration ordinarily.
17.1. The Customer may not transfer, assign or novate its rights and/or obligations, under the Agreement without the prior written consent of STAKHA.
17.2. Any assignment, transfer or novation of all or any part of the Agreement or attempt thereto, that does not comply with this clause, is void and shall have no effect. Such an attempt will be considered as a material breach of the Customer.
18.1. All notices that a Party is required or permitted to provide to the other Party in connection with this Agreement shall be in writing and shall be done at the address/contact details mentioned in the ToS. A notice shall be deemed to have been duly given:
a) on the date of delivery mentioned on the proof of delivery, when sent by registered or certified mail, postage prepaid and with proof of delivery;
b) the first Business Day following the day the notice is sent, if sent by facsimile or by email provided that the facsimile or email transmission is promptly confirmed by telephone or by an electronic receipt;
c) the date of delivery, if delivered personally to the intended recipient;
19. Applicable law and dispute
19.1. This Agreement is governed by and interpreted in accordance with French law.
19.2. The courts of Paris shall have exclusive jurisdiction to settle any disputes arising out of or in connection with this Agreement.