Last updated 9th January 2020
PLEASE READ THE TERMS OF THIS AGREEMENT CAREFULLY
1.1. WorkSmarter is an online platform that enables Authorised Users (as defined in clause 2.1) to access and use the online human resource services developed, operated and maintained by us (or our licensors, where applicable) (the "Software"). The Software can be accessed through https://worksmarter.co.uk (the "Site").
1.2. The Software and the Services (as defined in clause 2.1) are provided by WorkSmarter Limited, a company incorporated and registered in England and Wales with company number 11542509 whose registered address is at 74 The Close, Norwich, NR1 4DR (the "Supplier", "we", "us", "our"). The Supplier's registered VAT number is 304 3328 42.
1.3. These Conditions set out the terms and conditions on which you may access and use the Software and the Services. By registering an account, you hereby agree to and accept these Conditions. Before you accept these Conditions, we strongly recommend that you print and read them in detail. If you access and use the Software and the Services, you must comply with these Conditions at all times.
1.4. We may amend, vary, delete or add to these Conditions from time to time at our sole discretion. If we amend these Conditions, we will notify you when you next access the Site or the Software. Any amendment to these Conditions or new terms and conditions for the Software and the Services may be displayed on-screen, and you may be required to read and accept them to continue your use of the Software and/or the Services.
1.5. If you are entering into the agreement on behalf of a company or other body corporate, you hereby warrant and represent that you have the authority to bind that entity to these Conditions.
1.7. Compatible Web Browsers. A list of compatible web browsers is available at https://worksmarter.co.uk/help/more-info/system-requirements. When using the Software, please ensure that you are using one of these compatible web browsers. We will not be responsible for use of the Software on any version of any web browser that is not listed on https://worksmarter.co.uk/help/more-info/system-requirements. We may change the compatible web browsers from time to time (at our sole discretion), so please check back regularly for the latest list.
"Administrator": has the meaning given in clause 5.1.
"Applicable Laws": all regional, national and international laws, regulations and standards applying to the person or circumstances in question, including standards imposed by or notices issued by any governmental or regulatory authorities and all generally applicable industry standards, including those attributable to self-regulation.
"Authorised Users": those employees, representatives, agents, consultants and independent contractors of the Client who are authorised to use the Software, the Services and the Documentation, as further set out in clause 5.
"Business Day": a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
"control": shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
"Client": any person, firm or company who registers for User Subscriptions in order to enable Authorised Users to access and use the Software, the Services and the Documentation.
"Client Data": any data, information or material inputted or submitted by or on behalf of the Client and/or Authorised Users in or on the Software or generated by the Software in the course of the Services including (without limitation) employee data held on the Software.
"Conditions": these terms and conditions as amended from time to time.
"Confidential Information": all information (including all oral and visual information, and all information recorded in writing or electronically, or in any other medium or by any other method) disclosed to, or obtained by, one party from the other party or a third party acting on that other party's behalf including without limitation:
(a) any information relating to the business of either party including: any ideas; business methods; finance; prices, business, financial, marketing, development or manpower plans; customer lists or details; supplier lists or details; computer systems and software; products or services; know-how; trade secrets; processes; marketing opportunities; other matters connected with the products or services manufactured, marketed, provided or obtained by either party; information concerning either party's relationships with actual or potential clients, customers or suppliers; and
(b) any other information so disclosed or obtained and which has been stated to be confidential.
"Data Controller": has the meaning given to it in Data Protection Legislation.
"Data Processor": has the meaning given to it in Data Protection Legislation.
"Data Protection Legislation": means all applicable statutes, laws, secondary legislation, rules, regulations and guidance from a Supervisory Authority (or its UK equivalent) relating to privacy, confidentiality, security, direct marketing or data protection of Personal Data or corporate data (including any national laws implementing any such legislation (including Directives 95/46/EC, 2002/58/EC and 97/66/EC)), including the Data Protection Act 1998, the Privacy and Electronic Communications (EC Directive) Regulations 2003 (SI2003/2426), the Regulation of Investigatory Powers Act 2000 and the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699) and the General Data Protection Regulation.
"Data Subject": has the meaning given to it in Data Protection Legislation.
"Documentation": the Documentation and user instructions for the Software made available to the Client by the Supplier online through the Software.
"Effective Date": the date on which the Client signs-up to the Software.
"Fees": the licence fees payable by the Client to the Supplier in accordance with clause 11.
"General Data Protection Regulation": means Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
"Group": in relation to a company, that company, any subsidiary or holding company from time to time of that company, and any subsidiary from time to time of a holding company of that company. Each company in a Group is a member of the Group.
"Group Company": in relation to a company, any member of its Group.
"HR Services": has the meaning given in clause 9.4
"Intellectual Property Rights": patents, utility models, rights to inventions, copyright and related rights, trade marks and service marks, trade names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to preserve the confidentiality of information (including know-how and trade secrets) and any other intellectual property rights, including all applications for (and rights to apply for and be granted), renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist, now or in the future, in any part of the world.
"Normal Business Hours": 9.00 a.m. to 5.00 p.m. local UK time, each Business Day.
"Personal Data": has the meaning given to it in Data Protection Legislation.
"Payment Date": the Effective Date and the date falling each month thereafter during the Subscription Term.
"Services": the subscription services for the Software provided by the Supplier to the Client under this agreement, together with any other services provided by the Supplier to the Client (including, without limitation, the HR Services (where applicable)), as more particularly described in the Documentation and on the Site.
"Site": the website as set out in clause 1.1.
"Software": the online software platform provided by the Supplier as part of the Services, as more particularly described in clause 1.1.
"Subscription Term": has the meaning given in clause 16.1.
"Supervisory Authority": has the meaning given to it in Data Protection Legislation.
"Support Hours": 9 a.m. to 5.30 p.m. local UK time on each Business Day.
"Support Services Policy": the Supplier's policy for providing support in relation to the Software and the Services as made available at https://worksmarter.co.uk or such other website address as may be notified to the Client from time to time.
"User Subscriptions": the user subscriptions registered or purchased (as the case may be) by the Client pursuant to clause 5, which entitle Authorised Users to access and use the Software, the Services and the Documentation in accordance with these Conditions.
"Virus": any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
2.2 In these Conditions, unless the context otherwise requires:
(a) clause headings shall not affect the interpretation of this agreement;
(b) a person includes an individual, corporate or unincorporated body (whether or not having separate legal personality);
(c) a reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established;
(d) a reference to a holding company or a subsidiary means a holding company or a subsidiary (as the case may be) as defined in section 1159 of the Companies Act 2006;
(e) unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular;
(f) unless the context otherwise requires, a reference to one gender shall include a reference to the other genders;
(g) a reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement;
(h) a reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision;
(i) a reference to writing or written includes e-mail; and
(j) references to clauses are to the clauses of this agreement.
3.1 Upon signing up for the Software and the Services and at subsequent times as requested by the Supplier, the Client agrees to provide to the Supplier true, accurate, current and complete personal name and/or business name, administrator name(s), billing address, address(es) where the Software and Services will be primarily used, e-mail address, contact phone number, credit/debit card information, direct debit information and any other information that the Supplier may request from time to time to set up and administer your account (the "Registration Data"). You represent and warrant that the information you provide is accurate, current and complete and agree to promptly update any of the Registration Data if it changes.
3.2 If you provide Registration Data which is, or which the Supplier may suspect to be, false, inaccurate, out-of-date, incomplete, fraudulent or otherwise unlawful, the Supplier has the right in its sole discretion, to suspend the Software and the Services and/or terminate the agreement with immediate effect and refuse any and all current or future use of the Software by the Supplier, any Supplier Group Companies and any of its or their Authorised Users. At all times, the Client shall maintain and promptly update the Registration Data.
3.3 Where you are using a paid version of the Software and the Services, there may be certain additional information that we request from you so that we can provide the paid Software and Services. If you do not provide this information, or you give us incomplete or incorrect information, we may either terminate the agreement for the supply of the paid version of the Software and the Services or make an additional charge of a reasonable sum to compensate us for any extra work that is required as a result. We shall not be liable for any delay or non-performance of the paid version of the Software and the Services if such delay or non-performance is caused by your failure to provide the requested information or you provide incomplete or incorrect information.
4.1 Subject to the Client complying with these Conditions and making payment of the Fees (where applicable), the Supplier hereby grants to the Client a non-exclusive, non-transferable, non-sublicensable, personal, revocable right to permit the Authorised Users to access and use the Software, the Services and the Documentation during the Subscription Term solely for the Client's internal business operations.
4.2 These Conditions shall apply to this agreement to the exclusion of any other terms that the Client seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
4.3 Any advertising or promotional material produced by the Supplier in relation to the Software and/or the Services and any descriptions or illustrations of the Software and/or the Services are produced for the sole purpose of giving an approximate idea of the Software and/or the Services, and shall not form part of this agreement nor have any contractual force.
4.4 The Client may not access the Software, the Services and/or the Documentation if the Client is a direct competitor of the Supplier or of any of the Supplier's Group Companies, except with the Supplier's prior written consent.
5.1 The Client may register for and purchase (as the case may be) User Subscriptions to give access to and use of the Software, the Services and the Documentation to Authorised Users. The Client acknowledges and agrees that the person who registers for the initial User Subscription, by creating an account through the Site, shall be a person who is authorised to be an administrator of the User Subscriptions (the " Administrator"). The Client acknowledges and agrees that the Administrator may create further administrator accounts, which will grant equivalent access to and use of the Software as that granted to the Administrator. The Client warrants that any Administrator(s) shall have authority to bind the Client in respect of any matter relating to the Software and/or the Services under this agreement. The Administrator may at any time during the Subscription Term register for additional User Subscriptions to give additional Authorised Users access to and use of the Software, the Services and the Documentation in accordance with these Conditions. The Administrator may set different permissions and access in respect to the Software and the Services for each Authorised User.
5.2 The Client acknowledges and agrees that:
(a) the Supplier may rely on an Administrator having the authority to bind the Client (as set out in clause 5.1);
(b) where a person holds themselves out as being an Administrator, the Supplier shall be entitled to act on the basis that the person is an Administrator; and
(c) the Supplier shall have no liability or responsibly in connection with any act or omission of any person who holds themselves out as being an Administrator.
5.3 On the registration of a User Subscription, the Client shall provide the relevant Authorised User with log-in details to enable that Authorised User to access and use the Software, the Services and the Documentation.
(a) the maximum number of Authorised Users that it authorises to access and use the Software, the Services and the Documentation shall not exceed the number of User Subscriptions it has registered for from time to time;
(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User. The Client acknowledges and agrees that each User Subscription shall be personal to the applicable individual Authorised User;
(c) it will not allow or suffer any User Subscription to be transferred or assigned by an Authorised User to another person at any time;
(d) each Authorised User shall keep the log-in details for the use of the Software, the Services and Documentation confidential, safe and secure at all times and shall not disclose such log-in details to any third party. The Client acknowledges that the undertaking in this clause 5.4(d)shall be a strict condition of these Conditions, on the basis that such log-in details shall entitle the Authorised User to access the Client Data, which may include Personal Data (including "special categories of personal data" as defined in the Data Protection Legislation);
(e) it shall permit the Supplier to audit the use of the Software and the Services in order to establish the identity of each Authorised User. Such audit may be conducted no more than once per quarter, at the Supplier's expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Client's normal conduct of business;
(f) if any of the audits referred to in clause 5.4(e)reveal that any log-in details have been provided to any individual who is not an Authorised User or that log-in details are being used by more than one individual, then without prejudice to the Supplier's other rights, the Client shall be entitled, without liability to the Client, to promptly disable such log-in; and
(g) if any of the audits referred to in clause 5.4(e)reveal that the Client has underpaid Fees to the Supplier (including, without limitation, where more than one individual is using the same log-in details), then without prejudice to the Supplier's other rights, the Client shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with its then current Fees within 5 Business Days of the date of the relevant audit.
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) is harvesting or otherwise collecting information about others, including e-mail addresses, without their consent or in breach of Data Protection Legislation;
(c) facilitates illegal activity;
(d) depicts sexually explicit images;
(e) promotes unlawful violence;
(f) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(g) in a manner that is otherwise illegal or causes damage or injury to any person or property,
and the Supplier reserves the right without liability or prejudice to its other rights to the Client to disable the Client's access to the Software, the Services and/or the Documentation if it is in breach of this clause 5.5.
5.6 The Client shall not:
(a) except as may be allowed by any Applicable Law(s) which are incapable of exclusion by agreement between the parties:
(i) and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
(b) access all or any part of the Software, the Services and/or Documentation in order to build a product or service which competes with the Software, the Services and/or the Documentation;
(c) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the available the Software, the Services and/or Documentation to any third party except the Authorised Users;
(d) use the Software or the Services in any way that could damage, disable, overburden, impair or compromise the Supplier's systems or security or interfere with other users of the Software and/or the Services;
(e) collect or harvest information or data or attempt to decipher any transmissions to or from the servers running the Software; or
(f) attempt to obtain or assist third parties in obtaining access to the Software, the Services and/or Documentation.
5.7 The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software, the Services and/or the Documentation and, in the event of becoming aware of any such unauthorised access or use, immediately notify the Supplier in writing.
5.8 The Client acknowledges that any log-in details, user identification code or other security information in relation to the Software and/or the Services must be treated by the Client as confidential and must not be disclosed to any third party save for the Authorised Users. The Client acknowledges that it shall be responsible for any use or misuse of such log-in details, user identification code or other security. Any instructions or actions on the Software (including the registration of any additional User Subscriptions) through the Client's account shall be deemed to have originated from the Client if its account details have been utilised.
5.9 The rights provided under this clause 5are granted to the Client only, and shall not be considered granted to any member of the Client's Group.
6.1 The Supplier shall, subject to payment of the Fees (where applicable), make available the Software, the Services and the Documentation to the Client on and subject to the terms of this agreement.
6.2 Subject to clauses 6.3and 6.4, the Supplier shall use all reasonable commercial endeavours to ensure that the uptime of the Software is 99%, 24 hours a day, seven days a week.
6.3 The Supplier shall be entitled to carry out planned maintenance outside of Normal Business Hours by giving 24 hours' notice to the Client (by way of on-screen notification on the Site or otherwise) in advance.
6.4 The Supplier shall be entitled to carry out unscheduled maintenance at any time in the case of an emergency or any unforeseen circumstances that affect the Software and/or the Services. In these circumstances, the Supplier shall use its reasonable endeavours to give the Client as much notice in advance as possible, but where this is not reasonably practicable, the Supplier shall be under no obligation to provide any notice in advance.
6.5 The Supplier will, as part of the Services and at no additional cost to the Client, during the Subscription Term provide the Client with the Supplier's standard customer support services during the Support Hours in accordance with the Supplier's Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.
6.6 The Supplier shall use its reasonable endeavours to release any patches or bug fixes for the Software. Any repairs that the Supplier undertakes will be at its sole discretion and may be depending on the Client making available all the information that may be necessary to enable the Supplier to remedy the defect or fault, including sufficient information to enable the Supplier to recreate the defect or fault.
6.7 The Supplier may, in its sole discretion, add, remove or modify features or functions, or to provide fixes, updated and upgrades to the Software, the Services and/or the Documentation. The Client acknowledges and agrees that, subject to clause 6.6, the Supplier is under no obligation to make available subsequent versions of the Software or the Services, and that no third party has any obligation to furnish maintenance or support services in respect of the Software or the Services.
6.8 If the Client has registered through the Site for a trial or free version of the Software and the Services, the Client shall only have access to and use of the Software and the Services for the specified period of the trial or free of charge period (if applicable) (the " Trial Period"). The Client acknowledges that it must purchase User Subscription(s) before expiry of the Trial Period in order to retain access to any Client Data input or developed during the Trial Period. If the Client does not sign-up to the Software on a non-trial basis or purchase a User Subscription or User Subscriptions before expiry of the Trial Period, the Client shall not have access to the Client Data input or developed using the Software during the Trial Period. For the avoidance of doubt, any access to or use of the Software and/or the Services during the Trial Period shall be subject to these Conditions (where applicable).
7.1 The Client shall own all right, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, retention, accuracy and quality of the Client Data. The Supplier shall have no liability or responsibility in respect of the Client Data. The Supplier reserves the right to withhold, remove and/or discard the Client Data without notice for any breach of this agreement by the Client.
7.2 The Client acknowledges and agrees that nothing in this agreement, nor the Software, Services and/or Documentation shall constitute any legal advice. The Client is entirely responsible for complying with any Applicable Laws in respect of its use of the Software and the Services under this agreement.
7.3 The Supplier shall follow its archiving procedures for Client Data in accordance with any back-up procedures that it may operate from time to time. These back-up procedures may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Client Data, the Client's sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier in accordance with its archiving procedures. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party.
7.4 Notwithstanding clause 7.3, the Client shall use its best endeavours to regularly back-up, archive and/or export to another format the Client Data to ensure the security and integrity of the Client Data.
7.6 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 7is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
7.7 The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the Data Controller and the Supplier is the Data Processor.
7.8 Without prejudice to the generality of clause 7.5, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purpose of this agreement.
(a) process that Personal Data only on the Client's written instructions unless the Supplier is otherwise required under any Applicable Laws to process Personal Data. Where the Supplier is relying on any Applicable Laws as the basis for processing Personal Data, it shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from doing so;
(b) ensure that the Supplier has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of our systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by the Supplier);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
(d) not transfer any Personal Data outside of the European Economic Area unless the Client's prior written consent has been obtained and the following conditions are fulfilled:
(i) either party has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) the Supplier complies with any reasonable instructions notified to it in advance by the Client with respect to the processing of the Personal Data;
(e) assist the Client, at the Client's own cost, in responding to any request from a Data Subject and in ensuring compliance with the Client's obligations under the Data Protection Legislation with regard to security, breach notifications, impact assessments and consultations with any Supervisory Authority;
(f) notify the Client without undue delay on becoming aware of a Personal Data breach;
(g) at the Client's written direction, delete or return Personal Data and copies thereof to the Client on termination of this agreement unless required by any Applicable Laws to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate our compliance with this clause 7.8and allow for audits by the Client or a designated audited appointed on its behalf (provided that such audit shall not take place more than once per year).
7.10 The Client consents to the Supplier appointing any third party (that it may choose from time to time) to process Personal Data in connection with the Software and the Services. The Supplier confirms that it has entered or (as the case may be) will enter into a written agreement with the third party processor incorporating terms which are substantially similar to those set out in this agreement. The Supplier shall notify the Client of any intended changes concerning the addition or replacement of such third party processors, and the Client may object to these changes by giving notice of the objection within 14 days of the date of the original notice of the change. As between the parties, the Supplier shall remain fully liable for all acts or omissions of any third party processor appointed by the Supplier under this clause 7.9.
7.11 Notwithstanding this clause 7, the Client acknowledges that it may be submitting, inputting or providing "special categories of personal data" (as such term is defined in the Data Protection Legislation) of the Authorised Users to the Supplier in connection with the Software and the Services. The Client acknowledges and agrees that it is solely responsible for obtaining all necessary consents, authorisations and permissions from the Authorised Users or providing the necessary notices to Authorised Users, and any other third parties to enable the Client to submit, input or provide such information to the Supplier under this agreement. The Client shall not provide any information to the Supplier (including Client Data) or any other Personal Data unless and until it has obtained all necessary consents, authorisations and permissions to do so.
7.12 The Client shall indemnify and keep indemnified the Supplier against all liabilities, costs, expenses, damages and losses (including, but not limited to, any direct, indirect or inconsequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with:
(a) any breach of this clause 7;
(b) the Client's breach or non-compliance with any Applicable Laws in respect of the Client Data; or
(c) any claim against the Supplier or its officers, employees, agents or subcontractors by any third party arising out of or in connection with the Supplier's processing of Client Data (including any Personal Data) under this agreement.
9.2 The undertaking at clause 9.1shall not apply to the extent of any non-conformance which is caused by use of the Software and/or Services contrary to the Supplier's instructions, or modification or alteration of the Software and/or the Services by any party other than the Supplier or the Supplier's duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking the Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or where reasonably practicable, provide the Client with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Client's sole and exclusive remedy for any breach of the undertaking set out in clause 9.1.
(a) does not warrant that the Client's use of the Software will be uninterrupted or error-free, or that the Software, the Services, the Documentation and/or the information obtained by the Client through the Software and/or the Services will meet the Client's requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Client acknowledges that the Software, the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
9.4 If the Services involve the provision of human resource services (the "HR Services") to the Client (as may be offered as part of the Supplier's paid version of the Software and the Services), the Supplier shall be entitled to appoint a third party sub-contractor to procure the provision of the HR Services. The HR Services are intended to be guidance only and shall not constitute legal advice.
9.5 The Supplier shall use its reasonable endeavours to ensure that any sub-contractor appointed under clause 9.4 shall have sufficient skill, experience and expertise in respect of the HR Services.
9.6 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing the Software, the Services and/or the Documentation or products and/or services which are similar to those provided under this agreement.
The Client shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this agreement; and
(ii) all necessary access to such information as may be required by the Supplier;
in order to provide the Software and the Services, including but not limited to Client Data, security access information and configuration services;
(b) comply with all Applicable Laws with respect to its activities under this agreement;
(c) carry out all other Client responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Client's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Software, the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User's breach of this agreement;
(e) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement;
(f) ensure that its network and operating systems comply with the relevant specifications provided by the Supplier from time to time; and
(g) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Client's network connections or telecommunications links or caused by the internet.
11.1 If the Client is using a paid version of the Software and the Services, the Fees shall be payable under this clause 11.
11.2 The Fees shall be payable by the Client to the Supplier in advance on a monthly basis calculated by reference to the standard price per User Subscription as at the Effective Date (or such increased amount pursuant to clause 11.8 or otherwise) and the number of Authorised Users as at each Payment Date, unless and until the agreement is terminated in accordance with these Conditions. The Supplier may (at its sole discretion) offer an initial free period or Trial Period, during which time the Fees shall not be payable.
11.3 The Client shall not at any time reduce or minimise the number of User Subscriptions prior to any Payment Date in order to avoid paying the full Fees due under this agreement. If the Supplier becomes aware that the Client is doing so, the Supplier shall invoice the Client for an amount equal to any underpayment calculated by reference to its then current Fees, which the Client shall pay within 14 days of receipt of such invoice.
(a) Credit/debit card. The Client shall, on or before the Effective Date, provide to the Supplier valid, up-to-date credit/debit card details together with any other relevant valid, up-to-date and complete contact and billing details and the Client hereby authorises the Supplier to bill such credit/debit card for the Fees on each Payment Date.
(b) PayPal. The Client shall, on or before the Effective Date, provide to the Supplier valid, up-to-date PayPal account details together with any other relevant valid, up-to-date and complete contact and billing details and the Client hereby authorises the Supplier to deduct from such PayPal account the Fees on each Payment Date.
(c) Direct Debit. The Client shall, on or before the Effective Date, provide all information (including valid and up-to-date bank account details) and take all such steps as may be necessary to properly set up a Direct Debit for the Fees in relation to the Supplier. The Supplier shall notify the Client of the amount to be deducted from its nominated bank account on each Payment Date, and the Client hereby authorises the Supplier to deduct from such bank account the Fees on or around the fourteenth day after each Payment Date during the Subscription Term.
(d) Purchase Order. The Client shall, on or before the Effective Date, provide to the Supplier approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date and complete contact and billing details and the Supplier shall invoice the Client on each Payment Date for the Fees and the Client shall pay each invoice within 30 days of the date of such invoice.
11.5 The Supplier may refuse to accept payment by way of any one or more of the payment methods set out in clause 11.4if, in its reasonable opinion, such payment method would be inappropriate in the circumstances.
11.6 If the Supplier has not received payment by the due date referred to in, or details in relation to the relevant payment method as required by, clause 11.4, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Client, disable the Client's (and each of the Authorised User's) log-in, account and/or access in respect of all or part of the Software and/or the Services and the Supplier shall be under no obligation to provide any or all of the Software or the Services while the outstanding Fees remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current Bank of England base rate from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
11.7 All amounts and fees stated or referred to in these Conditions:
(a) shall be payable in pounds sterling;
(b) are, subject to clause 15.4(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the sums due at the appropriate rate.
11.9 The Supplier shall be entitled to increase the Fees by giving not less than 3 months' prior notice to the Client. If the Client refuses to accept the increase in Fees, this agreement shall automatically terminate immediately before the date on which the increase in Fees would otherwise have applied.
11.10 If the Supplier in its reasonable opinion believes that the amount of Client Data stored on behalf of the Client is excessive in relation to the Fees paid by the Client, the Supplier may charge an additional fee in respect of the storage of Client Data. The Supplier's fees for storage of such data shall be in accordance with its then current excess data storage fees.
11.11 If the Client has suspended its use of the Software or the Services, and subsequently re-commences using the Software or the Services, the Fees payable by the Client shall be back-dated to the most recent Payment Date after the Client re-commenced its use of the Software or the Services.
12.1 The Client acknowledges and agrees that all Intellectual Property Rights in the Software, the Services and the Documentation shall belong to the Supplier and/or its third party licensors (as the case may be). Except as expressly provided for in this agreement, nothing in this agreement shall grant the Client any rights or title to, or interest in, any Intellectual Property Rights in the Software, the Services and/or the Documentation.
12.2 To the fullest extent permitted by law, the Supplier shall not be liable to the Client for any costs, expenses, loss or damage (whether direct, indirect or consequential, and whether economic or otherwise) arising from the Client's exercise of the rights granted to it under this agreement.
12.3 The Client shall not do or omit to do or permit to be done any act that will or may weaken, damage or be detrimental to the Intellectual Property Rights in the Software, the Services and/or the Documentation or the reputation or goodwill associated with the same.
12.4 The Client shall indemnify and keep indemnified the Supplier against all liabilities, costs, expenses, damages and losses (including, but not limited to, any direct, indirect or inconsequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with the Client's exercise of its rights granted under this agreement, including any claim against the Supplier for actual or alleged infringement of a third party's intellectual property rights arising out or in connection therewith.
12.5 The Supplier confirms that it has all the rights in relation to the Software, the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
13.1 Both parties will keep confidential and will not divulge to any third party (other than to any of its Group Companies):
(a) the terms of this agreement; or
(b) any Confidential Information of the other party or any of its Group Companies.
13.2 Neither party will use the other party's Confidential Information for any purpose other than to perform its obligations arising out of or in connection with this agreement. Both parties will ensure that its officers, employees, agents and subcontractors comply with the obligations of confidentiality set out in this clause 13.
13.3 The obligations of confidentiality of this clause 13will not apply to any part of the Confidential Information which is:
(a) or was already, or has subsequently become, published or publicly available for use or otherwise in the public domain other than as a result of a breach of this agreement or of any confidentiality obligation owed by one party to the other;
(b) disclosed by either party pursuant to a requirement of the law or the lawful requirement of any governmental or other regulatory authority; or
(c) already in a party's possession at the time of disclosure by the other party other than as a result of a breach of this agreement or of any confidentiality obligation owed by that party to the other.
13.4 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
13.5 The Client acknowledges that details of the Software and the Services, and the results of any performance tests in relation to the Software and/or the Services, constitute the Supplier's Confidential Information.
13.6 The Supplier acknowledges that the Client Data is the Confidential Information of the Client.
13.7 No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13.8 The obligations of this clause 13will survive the termination of this agreement.
The Client shall defend, indemnify and hold harmless the Supplier against all claims, liabilities, costs, expenses, damages and losses (including, but not limited to, any direct, indirect or inconsequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the Supplier arising out of or in connection with the Client's use of the Software, the Services and/or Documentation.
15.1 This clause 15 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Client:
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Client of the Software, the Services and/or the Documentation or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
(a) the Client assumes sole responsibility for results obtained from, or outcome of, the use of the Software, the Services and the Documentation by the Client, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to the Supplier by the Client in connection with the Software or the Services, or any actions taken by the Supplier at the Client's direction;
(b) the Supplier shall not be liable for any actions or omissions of the Client as a result of or in connection with the HR Services and the Client acknowledges that the HR Services are intended to be guidance only and not constitute legal advice;
(c) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by the Applicable Laws, excluded from this agreement; and
(d) the Software, the Services and the Documentation are provided to the Client on an "as is" basis.
(a) for death or personal injury caused by the Supplier's negligence; or
(b) for fraud or fraudulent misrepresentation.
15.4 Subject to clause 15.2and clause 15.3:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
(b) the Supplier's total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid by the Client during the 3 months immediately preceding the date on which the claim arose.
16.1 The Subscription Term shall commence on the Effective Date and automatically renew on a rolling monthly basis for so long as the Client has at least one User Subscription, unless and until terminated in accordance with these Conditions.
16.2 Either party may terminate this agreement by giving the other at least 30 days' notice in writing.
16.3 Without affecting any other right or remedy available to it, the Supplier may suspend the Software and the Services or terminate this agreement with immediate effect by giving notice to the Client if:
(a) the Client fails to pay any amount due under this agreement on the due date for payment;
(b) the Client commits a material breach of this agreement;
(c) the Client commits a persistent breach of this agreement which it fails to remedy (if remediable) within 14 days of being notified by the Supplier of the breach;
(d) the Client commits a breach of clauses 5, 7, 10, 12or 13; or
(e) there is a change of control of the Client.
16.4 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
(b) the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(c) a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(d) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(e) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(f) a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
(g) a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
(h) any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 16.4(a)to clause 16.4(g)(inclusive); or
(i) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
16.5 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate;
(b) each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
(c) the Supplier may immediately deactivate or delete the Client's account, all related information and files in the Client's account and/or restrict any further access to such files, information or the Client's account;
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
16.6 On termination of this agreement (for whatever reason), the Client may request in writing within 10 days of the date of termination, for delivery to the Client of the then most-recent back-up of the Client Data in the Supplier's possession. The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Client within 60 days of receipt of such written request, provided that the Client has paid all Fees (where applicable) and any other charges outstanding at and resulting from termination (whether or not due at the date of termination). In these circumstances, the Supplier shall deliver the back-up in a format that the Supplier in its sole discretion considers most appropriate (whether electronically or in hard-copy), taking into account the size of the back-up of the Client Data. The Supplier shall be entitled to charge an additional amount for the delivery or disposal of the Client Data.
16.7 In the event that the Supplier does not receive a written request from the Client within 10 days under clause 16.6, the Supplier may destroy, delete or otherwise dispose of the Client Data in its possession.
The Supplier shall have no liability to the Client under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, and shall where practicable, notify the Client of such an event and its expected duration.
18.1 Waiver . No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
18.2 Rights and remedies . Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
(a) If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
(b) If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
(a) This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
(b) Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
(a) The Client shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
(b) The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18.6 No partnership or agency . Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
18.7 Third party rights . Except as expressly stated herein, this agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
(a) Any notice required to be given under this agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address as may have been notified by that party for such purposes, or sent by e-mail to:
(i) in the case of the Supplier: email@example.com.
(ii) in the case of the Client: the e-mail address provided on setting up an account on the Site.
(b) A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in Normal Business Hours, at 9.00 a.m. on the first Business Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by e-mail shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
18.9 Governing law . This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
18.10 Jurisdiction . Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
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