Terms and Conditions

General Terms and Conditions Testgroep BV

Applicability

These general terms and conditions apply to all agreements, offers, services, products, and subscriptions of Testgroep, located in Amsterdam, registered with the Chamber of Commerce under number 34271193, VAT number: 817836809B01, and are applicable to business customers. These TestGroup Terms of Service (hereafter referred to as the “Terms”) outline the conditions regarding Your use of the Services and are an integral part of the agreement between you (“you,” “your,” or “Customer”) and Testgroep B.V. (“TestGroup,” “us,” “we,” or “our”). You or TestGroup may also be referred to individually as a “Party” and collectively as “Parties” in these Terms. An “Affiliate” means any company or other entity, whether or not a legal person, which directly or indirectly controls, is controlled by, or is under joint control with that person. For the purpose of this definition, “control” means (a) any direct or indirect ownership of over 50% of the ownership, or (b) in the absence of such ownership interest, the power to direct or cause the direction of the management and set the policies of such company or entity.

These Terms represent a legally binding contract between You and TestGroup. If you do not agree with these Terms, do not register for a TestGroup account, and do not purchase Tests, Online Assessments, or Services. By using or accessing the Services, or registering for a TestGroup account, you agree to be bound by these Terms. If you use the Services on behalf of an entity, you agree to these Terms on behalf of that entity and warrant to TestGroup that you have the authority to bind that entity to these Terms, unless that entity has a separate paid contract in effect with TestGroup, in which case the separate paid contract governs your use of the Services.

In these Terms, we collectively refer to these Terms, the Data Processing Agreement (attached as a separate annex to these Terms), the Service Level Agreement (“SLA”), the Security Measures, and the Cookie Policy (jointly the “Documentation”) available on our website (“Website”) and applicable ordering documents (“Order Form,” as defined below) as the “Agreement.”

Definitions

"Agreement" refers to the entire contractual agreement between TestGroup and the Customer, including these Terms, any applicable Order Forms, and any annexes or appendices.

"Customer" refers to the legal entity or individual entering into this Agreement with TestGroup.

"Fees" refers to all charges, costs, and expenses payable by the Customer to TestGroup as specified in the Order Form, Price-list, or as otherwise agreed in writing.

"Services" refers to all products, online assessments, tools, and other offerings provided by TestGroup under this Agreement.

"Order Form" refers to the document or online form used to specify the Services ordered by the Customer, including the applicable Fees and other relevant terms.

"Terms" refers to these General Terms and Conditions governing the Agreement between TestGroup and the Customer.

The Agreement

An agreement is established either by registering through one of our websites where these terms and conditions can be viewed or by signing a quotation or agreeing to an offer via email.

Both parties have the right to terminate the agreement at any time for any reason, subject to the initial contract term and the agreed notice period. No refunds will be issued.

You may not transfer any rights or obligations arising from the agreement to third parties in any way without prior written consent from Testgroep BV.

If this agreement is terminated according to the terms and conditions, neither Testgroep BV nor yourself shall be liable for any damage or loss suffered by the other party.

Testgroep BV reserves the right to reject a request for an agreement without providing a reason.

The standard data processing agreement forms part of the general terms and conditions and is included as an attachment.

1. Grant of Access and Use

1.1. Subject to the terms and conditions of the Agreement (including our receipt of applicable fees), TestGroup hereby grants you, and you accept, a limited, personal, non-exclusive, non-sublicensable, non-transferable, non-assignable license to access and use the Services solely for your own internal assessment, employee development, and (direct) recruitment purposes (unless explicitly agreed otherwise in writing).

1.2. Access to and use of the Platform and Services is provided to any number of individuals taking the assessments or tests as part of the Services pursuant to the Agreement, in accordance with the applicable subscription plan (“Candidates”).

1.3. With prior written approval from TestGroup, your Affiliates may use the Services without entering into a separate Order Form by providing such Affiliate(s) with a login ID and password to access and use the Services. The Agreement shall apply to each Affiliate with access to your account, and you are directly and primarily responsible for all access to and use of the Services by your Affiliates. References in these Terms to you shall include a reference to your Affiliates.

2. The Services

2.1. The “Services” include TestGroup’s online assessment platform (“Platform”) and any other products (Tests, Online Assessments, and services, including training courses) provided by TestGroup that (a) have been ordered by the Customer under any purchase (either via the Website or otherwise) that specifies pricing and other commercial terms (“Order Form”); or (b) are used by you. Our Services provided under this Agreement are not intended for personal or individual use but are designed and intended solely for commercial use.

2.2. The Services provided under this Agreement shall be used strictly for internal or direct recruiting, employee development, or job application procedures only. Any use of the Services by search agencies, recruiting agencies, or sourcing platforms for third-party screening purposes or search assignments on behalf of third parties is strictly prohibited unless Parties have explicitly agreed otherwise in the Order Form. We reserve the right to immediately terminate your access to the Services and your account upon your violation of this prohibited use of the Services under these Terms.

2.3. TestGroup will provide the Services in accordance with (a) the terms of the Agreement; (b) applicable laws; and (c) the Information Security Measures.

2.4. We may provide the Services, or a portion thereof, to you through our Affiliates in accordance with these Terms and any applicable Order Form(s). TestGroup shall always remain responsible for any Services or parts thereof, provided by our Affiliates.

3. Your Account

3.1. To use our Services, you are required to order an account either via the TestGroup website or by email. To order an account, you must be legally authorized to represent the company or business contracting our Services, and you must review and accept these Terms on behalf of the Customer.

3.2. You agree to provide us with information that is accurate, complete, and current during your use of the Services. Failure to do so constitutes a breach of the Terms, which may result in the termination of your account on our Service.

3.3. You are responsible for safeguarding the password you use to access the Service and for any activities or actions under your password. You agree not to disclose your password to any third party.

3.4. You must notify us immediately upon becoming aware of any security breach or unauthorized use of your account. You are responsible for preventing unauthorized access to or use of the Services through your account and will notify TestGroup immediately of any such unauthorized access or use. TestGroup is not liable for any loss or damage arising from unauthorized use of your account.

4. Single Test & Online Assessment Purchase

A Customer may order individual products from Testgroep BV labeled "Single test & online assessment purchase" on the Testgroep BV website(s), which include certain tests, administration, and project management services.

No Refunds: (a) Orders for "Single test & online assessment purchase" cannot be withdrawn, and the related fees are non-refundable. Testgroep BV will charge the amounts stated in the price list or agreement for this. (b) There is limited transferability of non-refundable tests: (c) If the tests mentioned under (1) above have not been used, a client may request that a replacement candidate take the relevant test.

5. User Rights and Responsibilities

5.1. In using the Services, you agree to use the Services only in accordance with these Terms and applicable laws.

5.2. You will be solely responsible for all use of the Services under your account, including all applications, web domains, devices, and communication channels owned or controlled by you or owned or controlled by third parties and made available by you to the Candidates who access, use, interact with, or depend on the Services (each, a “Customer Application”).

5.3. You shall not: (a) duplicate any portion of the Services, or any documentation (except for your internal use); (b) modify, translate, decompile, reverse engineer, disassemble, adapt the Services, or attempt to derive the source code of the software offered through the Services; (c) use the Services, or allow the transfer, transmission, export, or re-export of the Services or any portion thereof in violation of any applicable law, regulation, or rule; (d) develop any software or service that is derived from the Services and materially similar in function to or competes with the Services; (e) bypass, hack, or breach any security device or protection used by the Services, or access or use the Services, with or without automated means (such as scraping, crawling, or spidering); (f) remove, modify, or obscure any identification or proprietary or restrictive rights markings or notices from the Services or any component thereof; (g) input, upload, transmit, or otherwise provide to or through the Services any information or materials that are unlawful or injurious, including the distribution or publication of information that is in violation of applicable law, contrary to public order or public morality, or contain, transmit, or activate any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code; or (h) aid or assist any third parties in doing any of the above.

5.4. You will not lease, (re)sell, (sub)license, assign, distribute, publish, transfer, or otherwise make available any Services to third parties (except Candidates), unless explicitly permitted under the Agreement.

5.5. The Services may only be used by individuals who are at least sixteen (16) years old.

5.6. If you, any of the Candidates, or any other person authorized to use the Services through your account violates the above restrictions or threatens to violate them, TestGroup is entitled to intervene, without prior consultation, to terminate the violation or prevent any imminent danger, for example by disabling the account of the relevant Candidates or your access to the Services. You will be liable for any damage caused by your use of the Services through your account in violation of these restrictions. TestGroup is at all times entitled to report criminal offenses to the relevant authorities directly related to your violation of the restrictions it has discovered and shall have no liability for any damage to you that may result from such reports.

6. Account Suspension

6.1. We have the right to remove any inappropriate content from the Services, limit, or suspend your access to your account and the Services with immediate effect and without prior notice if, in our reasonable determination: (a) your use or the use by Candidates of the Services is for any unlawful, unauthorized, or fraudulent purpose; (b) you or Candidates are in material breach of any provision of the Agreement; (c) your use of the Services materially threatens the security, availability, or integrity of the Services or our ability to provide service to other customers; (d) our provision or your use of the Services is not permitted by applicable laws or regulations; (e) the account information you have provided is incorrect or incomplete; or (f) you are in breach of your payment obligations under the Agreement.

6.2. If your account or use of the Services is suspended by us as a result of your actions or omissions pursuant to this Section 6 or Section 8 (Fees and Payment Terms), TestGroup shall not be liable for damages or losses, or any other consequences that you may incur as a result. You will remain responsible for the Fees (as defined below) during any suspension.

7. Maintenance and Downtime, Modifications

7.1. The Services may occasionally become unavailable due to (a) the performance of scheduled or unscheduled maintenance, modifications, or upgrades; (b) hardware failures, or failures of third-party providers; (c) actions taken to mitigate or prevent the effects of any threat or attack on the Services or any other network or systems on which the Services rely; or (d) as necessary for legal or regulatory reasons. We will use reasonable efforts to communicate any scheduled service outages to you in advance.

7.2. Unless specifically stipulated in the SLA (Service Level Agreement), TestGroup shall not be liable for any damages, losses, or any other consequences incurred as a result of the unavailability of Services or the failure to provide notice of unavailability.

7.3. We reserve the right to modify the features and operations of the Services from time to time. We agree that such changes to the Services will not materially diminish the overall features or functionality of the Services. Your continued use of the Services following the posting or notice of the changes will constitute your acceptance of such changes. If you do not agree to such changes, you must stop using the Services immediately.

8. Fees, Payment Terms, and Taxes

8.1. Fees: Unless agreed otherwise in writing by the Parties in the Order Form, you shall pay TestGroup all fees as published on the Website, Price-list, or as agreed in the Order Form, Agreement, or Contract (the "Fees"). Subscription plans have a standard duration of twelve (12) months unless explicitly agreed otherwise, and are paid in advance annually unless explicitly agreed otherwise.

8.2. Payment Terms: All payment obligations are non-cancelable, and Fees and taxes, once paid, are non-refundable. Except as otherwise set forth in the applicable Order Form(s) and subject to Section 8.9 (Payment Disputes), you will pay the Fees due under these Terms in accordance with the following applicable payment method: (a) if you elect to remit the Fees using a credit card or PayPal, you represent and warrant that you are authorized to use that credit card or PayPal account; or (b) if you elect to receive invoices and TestGroup approves you for the same, invoices will be sent to you at the frequency set forth in the applicable Order Form and you will pay the Fees due within twenty-one (21) days of the date of the invoice. For companies outside the Netherlands, the fees for the first order will need to be paid in advance (before the delivery of the Services, Tests, or Online Assessments), unless explicitly agreed otherwise.

8.3. Late Payments: If payment is not made on time, TestGroup reserves the right to suspend the service without the right to a refund. Interest may be charged on late payments at a rate of 1.5% per month, calculated daily and compounded monthly, or the maximum rate permitted by law. Late payment of invoices may also result in the suspension of online accounts without suspending the payment obligation.

8.4. Adjustment of Fees: TestGroup reserves the right to adjust test and subscription rates during the contract period. Your continued use of the Service after the modification of the Fees comes into effect constitutes your acceptance and agreement to pay the updated Fees.

8.5. Taxes: All Fees and other amounts payable by you under the Agreement are exclusive of taxes, duties, levies, and similar assessments, as well as any other costs including transaction costs or bank transfer fees. Without limiting the foregoing, you are responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by you hereunder, other than any corporate income taxes imposed on TestGroup's income.

8.6. Tax Exemptions: If for any reason the appropriate taxing authorities determine that you are not exempt from any taxes and TestGroup is required to pay such taxes, TestGroup is entitled to invoice you for the relevant amount. Any applicable penalties or interest that might be imposed will be added to such invoices. The Fees shall in no event be decreased by any taxes and/or fees of any nature owed by you in connection with your purchase of the Services.

8.7. Billing Information: You shall provide TestGroup with accurate and complete billing information including full name, address, state, zip code, country, telephone number, and a valid VAT or applicable tax registration number, and notify us of any changes to such information. By submitting the payment information, you automatically authorize TestGroup to charge all Fees incurred through your account to any such selected payment instruments.

8.8. Payment Disputes: If you do not agree with any invoice for Fees, you must notify TestGroup in writing within ten (10) days of the date of the respective invoice, failure of which shall result in acceptance of the invoice and forfeiture of your right to dispute the invoice. All undisputed Fees remain due according to schedule.

8.9. Cap on Liability for Fees: Notwithstanding anything to the contrary in this Agreement, TestGroup's liability for any claims related to Fees shall in no event exceed the total amount of Fees paid by the Customer to TestGroup in the twelve (12) months immediately preceding the date on which the claim arose.

9. Intellectual Property and Data

9.1. You acknowledge and agree that TestGroup and its licensors, as applicable, own and retain all title and rights, including all intellectual property rights, in and to (a) the Platform, the Services, Beta Products, the Documentation, the software including any related software application and/or component thereof, or to any associated materials or intellectual property, or in or to any enhancements, modifications, updates, or improvements of any of the foregoing (including any feedback you may provide), and all other materials created by us or provided by us to you as part of the Services under the Agreement, and (b) all operational and performance data related to your use of the Service and Beta Products, however excluding Customer Data (as defined below), and, subject to applicable law, any de-identified or anonymized aggregated data (“TestGroup Data”).

9.2. The Agreement does not grant to Customer any title or right of ownership in or to the Platform, the Services, or any related software application or component thereof, or to any associated materials or intellectual property, including test content and questions, test algorithms, output generated by Candidates, or psychological profiling (with the exception of Customer Data as defined below).

9.3. You are prohibited from modifying, translating, decompiling, reverse engineering, disassembling, adapting the Services and the associated intellectual property rights, or attempting to or abstracting the source code from the software underlying the Platform, the Services, the software, or the applications in any other way. You shall not remove or alter any of TestGroup’s proprietary or copyright notices, trademarks, or logos contained in the Services.

9.4. Any data that originates with a Candidate or that is directly provided by a Candidate via the use of the Platform or by a Candidate having created an account with TestGroup, including but not limited to the output of an individual Candidate generated by the Platform, (“Candidate Data”) shall be the exclusive property of the Candidate. This includes any personal data provided by the Candidate via the use of the Platform or when creating an account with TestGroup.

9.5. TestGroup hereby grants you, and you accept, a limited-term, personal, non-exclusive, non-sublicensable, non-transferable, non-assignable license to access and use TestGroup Data, including results derived from Candidate Data, solely for your own use of the Services in accordance with the Agreement.

9.6. All data or input, including personal data of your employees, that you submit, share, store, or otherwise provide to TestGroup as part of your use of the Services (which shall include Customer developed tests uploaded by you as part of your use of the Services) as well as data and materials generated by you via your use of the Services with such data under the Agreement (which shall include your analyzing, screening, assessing, scoring, rating, asserting, evaluation, or otherwise qualifying the output of an individual Candidate generated by the Platform, shall remain, as between Customer and TestGroup, the exclusive property of Customer (collectively, “Customer Data”) and you will retain ownership of your Customer Data (subject to the licenses below and any third-party rights therein). Candidate Data is explicitly excluded from Customer Data.

9.7. You grant us and our Affiliates as well as any sub-processors authorized by you to provide Services under these Terms, the right to collect, use, and process Customer Data only to the extent necessary to provide the Services, and in each case to enable TestGroup to operate or improve the Services, in accordance with the Terms and the Data Processing Agreement. The terms of the Data Processing Agreement are incorporated into these Terms as an Annex. Your agreement to these Terms also constitutes your agreement to the Data Processing Agreement.

9.8. You acknowledge and unconditionally agree that services, content, source code, and information on the website are protected by Testgroep BV's copyrights, trademarks, service marks, or other proprietary rights and laws. Neither the agreement nor the use of products of Testgroep BV gives you any right to copyright or trademark, nor does it in any way affect the exclusive ownership of Testgroep BV's copyright and trademark. You agree not to alter, copy, reproduce, rent, lend, sell, or redesign anything from the website's content. This also applies to the tests, code, and software.

9.9. You own your database (“Customer Data”) for all applications. This means that you can request an export of your data, including user data, test data, and test results. Costs may be associated with providing this data, depending on the nature and volume of the data.

10. Representations, Warranties, and Disclaimer

10.1. Each Party shall at all times comply with all applicable laws, rules, and regulations in the performance of the Agreement.

10.2. Each Party represents and warrants that it has been duly authorized to enter into the Agreement and it is entitled to perform its obligations and provide the licenses hereunder.

10.3. Customer represents and warrants to have obtained all the required permissions or consents to provide Customer Data to TestGroup for use and disclosure in accordance with the Agreement.

10.4. Customer represents and warrants (a) to use the Services only for lawful purposes and in a manner consistent with these Terms; (b) not to use the Services to assess candidates for any jobs which are unlawful, unsafe, offensive, discriminatory, or inappropriate; and (c) not to use the Services to solicit information from candidates that could be used to discriminate against them.

10.5. TestGroup warrants that the Services will substantially conform in all material respects in accordance with the specifications as described on the Website and that the Services shall not contain or transmit any (a) virus, trojan horse, worm, backdoor, or other software or hardware devices the effect of which is to permit unauthorized access to, or to disable, erase, or otherwise harm, any computer, systems, or software; or (b) time bomb, drop dead device, or other software or hardware device designed to disable a computer program automatically with the passage of time or under the positive control of any person. TestGroup further warrants and undertakes that: (a) it has and will maintain all necessary licenses, consents, and permissions necessary for the performance of its obligations under the Agreement; and (b) it will cooperate with Customer in all matters relating to the Services. You will provide prompt written notice of any non-conformity. As Customer’s sole and exclusive remedy and TestGroup’s entire liability for any breach of our warranties, TestGroup will at our sole discretion either (a) use reasonable efforts to fix, provide a workaround, or otherwise correct the defect or, if TestGroup is unable to do so, (b) refund the Fees paid to for such allegedly defective Services for the period commencing from the receipt of your default notice for the remainder of the time period during which the material failure affected the Services.

10.6. TestGroup warrants that it has obtained the consent of each Candidate to store and process the Candidate Data (including Candidate personal data).

10.7. Except for the warranties expressly provided by us in Section 10.1, 10.5, and 10.6, Customer expressly acknowledges and agrees that, to the maximum extent permitted by applicable law, the Services are provided “as is” with all faults and without warranty of any kind, and TestGroup hereby disclaims all warranties and conditions with respect to the Services, either express, implied, or statutory, including, but not limited to, the implied warranties and/or conditions of merchantability, of satisfactory quality, of fitness for a particular purpose, or accuracy.

11. Indemnification

11.1. Indemnification by TestGroup: TestGroup will defend, indemnify, and hold Customer harmless against all damages, fines, penalties, settlement amounts pre-approved by TestGroup, costs, expenses, taxes, and other liabilities (including reasonable attorneys’ fees) incurred or awarded against Customer in connection with any unaffiliated third-party claim, action, demand, suit, or proceeding made or brought against Customer and its Affiliates, as well as their individual officers, directors, and employees, that the Customer’s authorized use of the Services in accordance with the Agreement infringes a copyright, registered trademark, issued patent, or other intellectual property right of such third party ("Infringement Claim"), on written demand. TestGroup reserves the right to either (a) modify the Services to make them non-infringing, or (b) terminate the infringing Services and refund Customer any Fees paid for the infringing Services, in the event of an Infringement Claim. Notwithstanding the foregoing, TestGroup's liability under this indemnity shall be limited as provided in Section 12.

11.2. Indemnification by Customer: Customer will defend, indemnify, and hold TestGroup harmless against all damages, fines, penalties, costs, expenses, taxes, and other liabilities (including reasonable attorneys’ fees) incurred or awarded against TestGroup, its Affiliates, officers, directors, and personnel in connection with any claim by an unaffiliated third party arising out of or related to: (a) Customer's use of the Services in violation of the Agreement; (b) Customer’s failure to obtain any appropriate license or other permissions, regulatory certifications, or approvals associated with technology or data provided by Customer to TestGroup; (c) Customer’s use of the Services in violation of any applicable law, including data privacy laws; (d) Customer’s infringement or misappropriation of intellectual property rights of third parties; (e) Customer’s breach of confidentiality; and (f) any claim arising within the jurisdiction of the United States of America, including, but not limited to, any claims related to the Services sold or delivered in the United States.

11.3. Procedures for Indemnification: The Party seeking indemnification under this Agreement shall: (i) provide the indemnifying Party with prompt written notice of any claim for which indemnification is sought; (ii) allow the indemnifying Party to control the defense and settlement of such claim, provided that the indemnifying Party agrees not to enter into any settlement or compromise of any claim or action in a manner that admits fault or imposes any restrictions or obligations on the indemnified Party without that indemnified Party’s prior written consent, which shall not be unreasonably withheld; and (iii) cooperate fully with the indemnifying Party in connection with such defense and settlement.

11.4. Exclusions from Indemnification: TestGroup shall not be liable for any Infringement Claims arising out of: (a) Customer’s use of the Services in violation of the Agreement; (b) the combination of the Services with other applications, products, or services where the Services would not by themselves be infringing; (c) modifications to the Services made by anyone other than TestGroup; or (d) Customer’s failure to install updates or patches provided by TestGroup that would have prevented the infringement.

11.5. Indemnification Cap: TestGroup’s total liability for indemnification under this Agreement shall in no event exceed the amount of Fees paid by Customer to TestGroup in the twelve (12) months preceding the event giving rise to the claim.

11.6. Limitation on Indemnification Obligations: TestGroup’s obligation to indemnify the Customer under this Section 11 is limited to claims that directly arise out of TestGroup's own gross negligence or willful misconduct. TestGroup shall not be liable for any indirect, consequential, exemplary, punitive, or incidental damages, even if such claims are covered under the indemnification obligations of this Agreement.

11.7. Exclusion of US-Specific Claims: TestGroup shall not be obligated to indemnify the Customer for any claims arising under United States law, including but not limited to claims related to strict liability, product liability, or any alleged violations of federal or state regulations. This exclusion applies to the fullest extent permitted by applicable law.

11.8. Cap on Indemnification Liability: In no event shall TestGroup’s total liability for indemnification under this Agreement exceed the amount of Fees paid by the Customer to TestGroup in the twelve (12) months preceding the event giving rise to the claim.

11.9. Indemnification Procedures: The Customer agrees to promptly notify TestGroup of any claim or action for which indemnification is sought, and TestGroup shall have sole control over the defense and settlement of such claims. The Customer shall cooperate fully with TestGroup in defending any such claim, and any settlement that imposes any liability or obligation on TestGroup must receive TestGroup’s prior written consent.

12. Limitation of Liability

12.1. Maximum Liability: To the greatest extent permitted by applicable law, including the laws of the United States of America, each Party’s total cumulative liability to the other or to any third party for any direct loss, damages, costs, or expenses, whether in strict liability, negligence, contract, or otherwise relating to this Agreement, shall be limited to the aggregate fees paid or payable by Customer to TestGroup during the twelve-month period prior to the occurrence of the initial event giving rise to a claim.

12.2. Exclusion of Consequential Damages: Neither Party shall be liable to the other for any indirect, consequential, exemplary, punitive, or incidental damages, including but not limited to lost profits, lost sales, or loss of data, whether in contract, tort (including negligence), strict liability, warranty, or otherwise, even if such Party knew or should have known of the possibility of such damages. This exclusion applies to the maximum extent permitted by applicable law, including the laws of the United States of America.

12.3. No Liability for Candidate Misrepresentation: TestGroup shall not be liable for any damages or losses resulting from or relating to misrepresentation, fraud, or any other misconduct by any Candidate performing or conducting tests or assessments via the Platform.

12.4. Specific Exclusions for US Jurisdiction: To the extent permitted by applicable law, TestGroup shall have no liability for any claims or damages arising out of or related to the use, sale, or delivery of the Services within the United States of America, including but not limited to claims based on strict liability, product liability, or any alleged violations of federal or state laws governing consumer protection, data privacy, or any other regulations.

12.5. Disclaimer of Warranties: To the extent permitted by applicable law, TestGroup expressly disclaims all warranties, whether express, implied, statutory, or otherwise, including but not limited to any implied warranties of merchantability, fitness for a particular purpose, and non-infringement. This disclaimer applies specifically to any products or services provided in the United States.

12.6. Force Majeure: Neither Party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under the Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, terrorism, epidemic or pandemic, or the intervention of any governmental authority. In such an event, the delayed Party must promptly provide the other Party with written notice of the Force Majeure.

12.7. Cap on Liability: Notwithstanding anything to the contrary in this Agreement, in no event shall TestGroup’s total liability arising out of or related to this Agreement, whether in contract, tort (including negligence), or under any other theory of liability, exceed the total amount of fees paid by the Customer to TestGroup in the twelve (12) months immediately preceding the date on which the claim arose.

12.8. Limitation of Time for Claims: Any claim or cause of action arising out of or related to this Agreement must be brought within one (1) year after the occurrence of the event giving rise to such claim or cause of action. If not, such claim or cause of action is permanently barred, to the maximum extent permitted by applicable law.

12.9. No Liability for Third-Party Products: TestGroup shall not be liable for any claims or damages arising from the use of third-party products or services that are integrated with or used in conjunction with the Services. The Customer assumes full responsibility for such third-party products or services.

12.10. Disclaimer Regarding Use of Assessments and Reports: TestGroup provides assessments and reports as tools intended to assist customers in making informed decisions regarding recruitment, employee development, and other HR-related matters. However, TestGroup makes no representations or warranties regarding the appropriateness, accuracy, or legality of the use of such assessments and reports. TestGroup is not responsible for, and expressly disclaims any liability related to, the use or interpretation of the assessments and reports by the Customer, including any claims or damages arising from decisions made based on such assessments and reports, including but not limited to claims of stereotyping, discrimination, or any other alleged violation of law. The Customer acknowledges and agrees that it is solely responsible for ensuring that the use of the assessments and reports complies with all applicable laws, regulations, and ethical standards, including those related to anti-discrimination and equal employment opportunity. TestGroup strongly advises that all assessments and reports be used as part of a broader decision-making process and not as the sole basis for any employment-related decisions.

13. Term and Termination

13.1. Commencement and Duration: The Agreement, including these Terms, commences on the date when accepted or on the date indicated in the Order Form or Agreement and will continue for the initial subscription term (“Initial Term”) as specified in the Order Form. Unless otherwise provided on the Website or in the applicable Order Form, the Agreement will automatically renew for additional successive periods of equal duration to the Initial Term (each, a “Renewal Term”), unless either Party provides written notice of termination to the other Party at least thirty (30) days prior to the end of the Initial Term or any subsequent Renewal Term.

13.2. Non-Renewal: If you do not agree to the renewal of the Agreement, you must notify TestGroup in writing at least thirty (30) days before the end of the then-current Term. Failure to provide such notice will result in the automatic renewal of the Agreement, and you will be responsible for payment of the applicable Fees for the entire Renewal Term. Termination of the Agreement during the Term is not permitted, except as provided for in Section 13.7.

13.3. Termination for Material Breach: Either Party may terminate the Agreement and any Order Form (in whole or in part) by providing the other Party with not less than ten (10) days' prior written notice in the event the other Party materially breaches any provision of this Agreement. If the breaching Party fails to cure the material breach within the ten (10) day period following the notice of default, the non-breaching Party may terminate this Agreement effective at the end of the ten (10) day period, notwithstanding any other provision in this Agreement. Regarding a material breach of Customer, TestGroup may, in addition to termination, suspend the provision of certain Services, close your accounts, and/or prohibit Customer from creating any new accounts.

13.4. Termination for Insolvency: Either Party may terminate this Agreement by written notice with immediate effect in the event the other Party becomes insolvent, or generally unable to pay its debts as they become due, makes an assignment for the benefit of its creditors, or seeks relief under any bankruptcy, insolvency, or liquidation proceedings.

13.5. Effect of Termination: In the event of any expiration or termination of the Agreement: (a) TestGroup will invoice Customer for any accrued but unbilled amounts, and Customer shall promptly pay any then-outstanding and unpaid amounts including any accrued but unbilled amounts owed under the Agreement; (b) Customer shall immediately cease all use of the Services and return or purge any and all components thereof, including returning or destroying or causing to be destroyed any and all copies of the Documentation, notes, and other materials comprising or regarding the Services, any Candidate Data copied, stored, or otherwise transferred to Customers’ systems as well as any TestGroup Data and Confidential Information; (c) TestGroup will suspend access to the Services, and Customer shall no longer have access to TestGroup’s platform including its historical assessments.

13.6. Survival: The following sections and paragraphs shall survive the expiration or termination of the Agreement under this Section 13 (Term and Termination): Section 8 (Fees and Payment Terms), Section 9 (Intellectual Property and Data), Section 14 (Confidentiality), Section 12.6 (Disclaimer), Section 11 (Indemnification), Section 12 (Limitation of Liability), Section 15 (Miscellaneous) as well as the Data Processing Agreement.

14. Confidentiality

The parties will keep the agreement, its content, related matters, and any information exchanged orally or in writing, in material or immaterial form, confidential. If a mutual non-disclosure agreement exists between the parties, this article applies only to the extent that it exceeds the relevant non-disclosure agreement. The receiving party will take at least the same level of security and care as it applies to its own confidential information. Each party guarantees that the measures taken will provide appropriate protection against unauthorized disclosure, copying, or use.

15. Amendments

15.1. TestGroup is entitled to amend these Terms from time to time. To the greatest extent permitted by applicable law, the new Terms will take immediate effect, and your continued use of the Services following our posting or notice of the changes will constitute your acceptance of the updated Terms.

15.2. If we are required by applicable law to give additional notice, changes will automatically take effect regarding your use of the relevant Services upon expiry of such notice period (unless you terminate during that period) or upon your earlier acceptance of such changes. If you have a right under applicable law to terminate this Agreement upon receipt of such notice, you will not be charged a fee for early termination where you exercise that right under applicable law, but any fees previously paid by you are non-refundable and any fees owing continue to remain due and payable.

16. Miscellaneous

16.1. Compliance with Law Assurances. Both Parties warrant to comply with all applicable anti-corruption, anti-money laundering, sanctions, export controls, and other international trade laws, regulations, and governmental orders of the European Union, the United Kingdom, the United States of America, the United Nations, or any other relevant governmental authority, including obtaining all necessary licenses and/or government approvals. Parties will promptly notify each other in writing of any actual or potential violation of such applicable laws and regulations in connection with the use of the Services, and Parties shall take all appropriate actions to remedy or resolve such violations, including any actions requested by the other Party.

16.2. No Class Actions. To the greatest extent permitted by applicable law, neither Customer nor TestGroup shall be entitled to join or consolidate claims by or against other customers or pursue any claim as a representative of a class action or in a private attorney general capacity.

16.3. US Government Terms. The Services, including any related software and technology, are provided solely in accordance with these Terms for United States government end use. If you (or any users of your Customer Application) are an agency, department, or other entity of the United States government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Services, or any related documentation, is restricted by these Terms. All other use is prohibited and no other rights other than those provided in these Terms are conferred.

16.4. The Services, including any related software and technology, are provided solely in accordance with these Terms for United States government end use. TestGroup BV expressly disclaims any and all liability for any direct, indirect, incidental, consequential, special, or punitive damages arising out of or related to the use, modification, release, duplication, reproduction, disclosure, or transfer of the Services by any United States government agency or entity, except as specifically provided in this Agreement. In the event of any conflict between these Terms and any United States federal, state, or local laws, regulations, or orders, including but not limited to the Federal Acquisition Regulation (FAR) or the Defense Federal Acquisition Regulation Supplement (DFARS), the provisions of this Agreement shall govern to the maximum extent permitted by applicable law. Furthermore, TestGroup BV does not provide any warranties, express or implied, including but not limited to any implied warranties of merchantability or fitness for a particular purpose, for any use of the Services by the United States government, its agencies, or any contractor or subcontractor acting on behalf of the United States government.

16.5. Independent Contractors. The Parties are independent contractors. No provision of this Agreement will or shall be deemed to create an association, trust, partnership, joint venture, or other entity or similar legal relationship between TestGroup and Customer, or impose a trust, partnership, or fiduciary duty, obligation, or liability on or with respect to such entities. Neither Party will have any rights, power, or authority to act or create an obligation, express or implied, on behalf of another party except as specified in the Agreement.

16.6. Force Majeure. Neither Party shall be liable to the other for any failure to perform any of its obligations (except payment obligations) under the Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control, such as fire, flood, war, embargo, strike, riot, terrorism, epidemic or pandemic, or the intervention of any governmental authority (a “Force Majeure”). In such an event, however, the delayed Party must promptly provide the other Party with written notice of the Force Majeure. The delayed Party’s time for performance will be excused for the duration of the Force Majeure, but if the Force Majeure event lasts longer than ninety (90) days, then the other Party may immediately terminate, without any liability, in whole or in part, the Agreement by giving written notice to the delayed Party.

16.7. Transferability and Subcontracting. Neither all nor any part of Customer’s rights or obligations under this Agreement are assignable or transferable by Customer, whether directly or indirectly, without the prior written consent of TestGroup, and any attempt to do so shall be void, except in case of merger, acquisition, or sale of the majority of assets. TestGroup has the right to freely assign all or part of its rights and obligations under the Agreement or to make use of the services of third parties by subcontracting. Subject to the foregoing, the Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and permitted assigns.

16.8. Entire Agreement. The Agreement constitutes the entire agreement between you and us with respect to its subject matter and supersedes all prior oral and written understandings, communications, or agreements. General terms and conditions of Customer are not applicable and expressly excluded.

16.9. Severability. If any provision of the Agreement should be found to be void or unenforceable, such provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of the Agreement will remain in full force and will not be terminated.

16.10. Notices. Any notice, request, demand, or other communication to be provided under this Agreement shall be in writing and shall be sent by the email addresses provided by each Party, or at such other address as a Party may designate by written notice to the other Party.

16.11. Headings. The section headings in this Agreement are inserted for convenience of reference only and shall not affect the meaning or interpretation of the Agreement.

16.12. Publicity. You grant us the right to use your name, logo, and a description of your use case to refer to you on our website, customer lists, or marketing or promotional materials, subject to your standard trademark usage guidelines expressly provided to us. Testgroep BV requests the right to add the name and logo of a client to Testgroep BV's customer list online and to use this information in other marketing materials; (a) and (b) cooperation from a client in the joint development of a case study describing the client's use of products and/or in other joint press and/or marketing messages.

16.13. Execution. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. Each Party agrees that this Agreement and any other documents to be delivered in connection herewith may be electronically signed, and that any electronic signatures appearing on this Agreement or such other documents are the same as handwritten signatures for the purposes of validity, enforceability, and admissibility.

17. Warranty of Business Users

If you use the website as a professional and use the product to advise others, you warrant that:

You will act and use the product in accordance with national or international professional standards and ethics.

You will act and use the product in accordance with national or international laws and regulations, instructions, and guidelines, and all other applicable government or semi-government rules.

For certain services or products, Testgroep BV may test your reliability and knowledge as a professional before granting access to these services or products. Testgroep BV reserves the right to deny access without giving a reason.

18. Privacy and Information Security

The protection of your privacy is very important to us. When handling your information, we adhere to the following rules:

• We do not share personal information with third parties.
• All information is stored and processed in a secure environment.
• When your account expires, all personal information will be removed from our database.
• Test results and other personal information are only used in anonymized form for statistical analysis.
• You can delete all candidate data (per year) in the system. To comply with regulations, you must delete data older than 24 months.

Testgroep BV reserves the right to use anonymized and fully aggregated information from professionals and their clients for further development of tests and services. This includes, but is not limited to, research for developing norm groups and conducting statistical analyses.

19. Governing Law

19.1. The Agreement, including these Terms, shall be governed by the laws of the Netherlands. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.

19.2. The Parties agree that any dispute arising out or relating to the Agreement shall be brought exclusively in the courts in Amsterdam, the Netherlands.

19.3 Governing Law: This Agreement, including these Terms, shall be governed by and construed in accordance with the laws of the Netherlands, without regard to its conflict of law principles. The United Nations Convention on Contracts for the International Sale of Goods is explicitly excluded.

19.4 Exclusive Jurisdiction: The Parties agree that any dispute arising out of or relating to this Agreement shall be brought exclusively in the courts of Amsterdam, the Netherlands. The Customer agrees to submit to the exclusive jurisdiction of these courts and waives any objections based on venue or forum non-conveniens.

19.5 Specific Provisions for US Customers:

• (a) Application of Dutch Law: For US-based Customers, this Agreement remains governed by Dutch law. However, TestGroup recognizes the potential need for local compliance and jurisdictional clarity.
• (b) Arbitration for US Disputes: In the event that a dispute arises between TestGroup and a US-based Customer, the Parties agree to first attempt to resolve the dispute through arbitration, to be conducted in a mutually agreed location in the United States, under the rules of the American Arbitration Association (AAA). The arbitration shall be conducted in English, and the decision of the arbitrator shall be final and binding.
• (c) Limited Recourse to US Courts: Any dispute arising between TestGroup and a US-based Customer shall first be subject to final and binding arbitration. If arbitration is not successful or if both parties agree to bypass arbitration, any legal action or proceeding arising out of or relating to this Agreement that is brought in the United States shall be subject to the exclusive jurisdiction of the federal or state courts located in New York City, New York. However, the applicable law for such proceedings shall remain Dutch law, as specified in 19.1.

19.6 Limitation of Claims: Any claim or cause of action arising out of or related to this Agreement must be brought within one (1) year after the occurrence of the event giving rise to such claim or cause of action. If not, such claim or cause of action is permanently barred, to the maximum extent permitted by applicable law.

19.7 Waiver of Jury Trial: To the maximum extent permitted by applicable law, each Party hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or related to this Agreement. This waiver applies to any claim, counterclaim, or action, whether in contract, tort (including negligence), strict liability, or otherwise.