Background

(A)           The Supplier has developed HR Software which it makes available to subscribers via the internet on a pay-per-use basis.

(B)           The Client wishes to use the Supplier’s service in its business operations.

(C)          The Supplier has agreed to provide and the Client has agreed to take and pay for the Supplier’s service subject to the terms and conditions of this agreement.

Interpretation

1. The definitions and rules of interpretation in this clause apply in this agreement.

• Acceptable Use Policy: the acceptable use policy as set out in Appendix A and located at http://www.activpeopleHR.co.uk/terms which includes any subsequent amendments and updates made.
• Authorised Users: those employees, agents and independent contractors of the Client who are authorised by the Client to use the Services and the Documentation, as further described in clause c.
• Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
• Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
• Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 5 or clause 12.6.
• Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
• Client: the client as named in the Order Form.
• Client Data: the data inputted by the Client, Authorised Users, or the Supplier on the Client’s behalf for the purpose of using the Services or facilitating the Client’s use of the Services.

Content: all personnel records, including planned and unplanned absence, training records, personnel appraisals and handbook data entered in the use of the Service by the Client or its employees.

Data Protection Legislation:

1. to the extent the UK Data Protection Legislation applies, all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (“DPA 2018”) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
2. to the extent the EU GDPR applies, the law of the European Union or any member state of the European Union to which the Supplier is subject, which relates to the protection of personal data.

• Documentation: any documents made available to the Client by the Supplier from time to time which sets out a description of the Services and the user instructions for the Services.
• Effective Date: the date entered into in the Order Form.
• EU GDPR: the General Data Protection Regulation ((EU) 2016/679).
• Initial Subscription Term: the initial term of this agreement as set out in the Order Form.
• Normal Business Hours: 9:00am to 5:00pm local UK time, each Business Day.
• Order Form: the order form setting out the particulars of the Services and Subscription Fees.
• Professional Services: means any implementation, configuration, training and consulting services, that may be performed to the Client’s specific requirements, as identified in the Order Form and provided more fully in accordance with the terms set out in Schedule 2.
• Professional Services Fees: means the fees payable by the Client to the Supplier for the Professional Services provided by the Supplier, as set out in the Order Form or as otherwise agreed between the parties.
• Renewal Period: the period described in clause 1.
• Services: the subscription services provided by the Supplier to the Client under this agreement as more fully set out in the Order Form (if applicable).
• Software: the online software applications provided by the Supplier as part of the Services.
• Subscription Fees: the subscription fees payable by the Client to the Supplier for the User Subscriptions, as set out in Order Form (if applicable) excluding any Professional and/or Support Services.
• Subscription Term: has the meaning given in clause 1 (being the Initial Subscription Term together with any subsequent Renewal Periods).
• Supplier: CODEL SOFTWARE LTD incorporated and registered in England and Wales with company number 05838660 whose registered office is at Unit 1c Charnwood Park, Bridgend, CF31 3PL trading as ACTIV PEOPLE HR.
• Support Services: means the support services described in Schedule 1 to be performed by the Supplier in accordance with this agreement.
• UK Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.
• UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
• User Subscriptions: the user subscriptions purchased by the Client pursuant to clause 1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
• Virus: anything 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.
• Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.
  • Clause, schedule and paragraph headings shall not affect the interpretation of this agreement.
  • A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
  • A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
  • Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
  • Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
  • 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.
  • 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.
  • A reference to writing or written includes e-mail.
  • References to clauses are to the clauses of this agreement.

2. User subscriptions
   • Subject to the Client purchasing the User Subscriptions in accordance with clause 3 and clause 10.1, the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Client a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Client’s internal business operations. For the avoidance of any doubt, there are no permitted resale activities of any kind including use by any third parties (together the “Resale Activities”). Any Resale Activities may only be permitted if the Supplier has allowed for this and the Client agrees that such Resale Activity will incur additional charges, such charges and Resale Activity use shall be set out in the Order Form if permitted by the Supplier.
   • To allow for flexibility of license allocation for joiners and leavers, a further 10% of the contracted numbers of Authorised Users may be added to the system before an amendment to increase licenses is triggered. Such amendment will incur an additional fee at the applicable rate and pro rata to the term of the licences. Employee profile numbers will be taken 30 days prior to the renewal date and this number shall be used as a basis for any renewal.
   • In relation to the Authorised Users, the Client undertakes that:
3. the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;
4. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
5. it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within 2 Business Days of the Supplier’s written request at any time or times; and
6. it shall permit the Supplier or the Supplier’s designated auditor to audit the Services and the Client’s data processing facilities to audit compliance with this agreement. Each 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; and
7. if any of the audits referred to in clause d reveal that the Client has underpaid Subscription Fees to the Supplier, 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 the prices set out in the Order Form within 15 days of the date of the relevant audit.
   • The Client shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
8. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
9. facilitates illegal activity;
10. depicts sexually explicit images;
11. promotes unlawful violence;
12. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
13. 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 any material that breaches the provisions of this clause.

• The Client shall not:

1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:
2. 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
3. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
4. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
5. use the Services and/or Documentation to provide services to third parties; or
6. subject to clause 1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users, or
7. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 2; or
8. introduce or permit the introduction of, any Virus or Vulnerability into the Supplier’s network and information systems.
   • The Client shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify the Supplier.
   • The rights provided under this clause 2 are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client.
9. Additional user subscriptions
   • Subject to clause 2 and clause 3.3, the Client may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in the Order Form (if applicable) and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this agreement.
   • If the Client wishes to purchase additional User Subscriptions, the Client shall notify the Supplier in writing. The Supplier shall evaluate such request for additional User Subscriptions and respond to the Client with approval or rejection of the request. Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 10 day(s) of its approval of the Client’s request.
   • If the Supplier approves the Client’s request to purchase additional User Subscriptions, the Client shall, within 30 days of the date of the Supplier’s invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in the Order Form and, if such additional User Subscriptions are purchased by the Client part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
10. Services
    • The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Client on and subject to the terms of this agreement.
    • The Supplier shall use commercially reasonable endeavours to make the Services available 24/7 except for:
11. the support desk which shall be during the hours of 9:00am to 5:00pm (UK local time),
12. planned maintenance carried out during the maintenance window after 5:00pm (UK local time) on a Business Day; and
13. unscheduled maintenance performed outside of business hours, provided that when not undergoing scheduled maintenance, Activ People HR is available 99.9% of the time. In any event of solution unplanned availability, the Supplier will refund 2 hours’ service for every 60 minutes of lost availability, up to a maximum value equal to the Client’s monthly subscription charge (the “Service Level Agreement”). Any credits offered under the Service Level Agreement will be refunded at the end of the contract term.
14. Professional Services
    • If the Client requires any Professional Services to be performed by the Supplier, the provision for such services shall be agreed in an Order Form. Unless otherwise set out in the Order Form, such Professional Services shall be charged in accordance with the Supplier’s then applicable rate card.
    • The Supplier will provide the Professional Services in accordance with the agreement, the applicable Order Form and Schedule 2.
15. Client data
    • The Client shall own all right, title and interest in and to all of the Client Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Client Data.
    • In the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy against the Supplier shall be for the Supplier to use commercially reasonable endeavours to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by the Supplier if the Supplier has back-up facilities. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Client Data maintenance and back-up for which it shall remain fully liable under clause 8).
    • Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 6 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
    • The parties acknowledge that:
16. if the Supplier processes any personal data on the Client’s behalf when performing its obligations under this agreement, the Client is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
17. the personal data may be transferred or stored outside the EEA or the country where the Client and the Authorised Users are located in order to carry out the Services and the Supplier’s other obligations under this agreement.
    • Without prejudice to the generality of clause 3, 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 purposes of this agreement so that the Supplier may lawfully use, process and transfer the personal data in accordance with this agreement on the Client’s behalf and as more fully set out in Appendix B.
    • Without prejudice to the generality of clause 3, the Supplier shall, in relation to any personal data processed in connection with the performance by the Supplier of its obligations under this agreement:
18. process that personal data only on the documented written instructions of the Client unless the Supplier is required by the laws of any member of the European Union or by the laws of the European Union applicable to the Supplier and/or Domestic UK Law (where Domestic UK Law means the UK Data Protection Legislation and any other law that applies in the UK) to process personal data (Applicable Laws). Where the Supplier is relying on Applicable Laws as the basis for processing personal data, the Supplier shall promptly notify the Client of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Client;
19. not transfer any personal data outside of the European Economic Area and the United Kingdom unless the following conditions are fulfilled:
    • the Client or the Supplier has provided appropriate safeguards in relation to the transfer;
    • the data subject has enforceable rights and effective legal remedies;
    • 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
    • the Supplier complies with reasonable instructions notified to it in advance by the Client with respect to the processing of the personal data;
20. assist the Client, at the Client’s cost, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
21. notify the Client without undue delay on becoming aware of a personal data breach;
22. at the written direction of the Client, delete or return personal data and copies thereof to the Client on termination of the agreement unless required by Applicable Law to store the personal data (and for these purposes the term “delete” shall mean to put such data beyond use); and
23. maintain complete and accurate records and information to demonstrate its compliance with this clause 6 and immediately inform the Client if, in the opinion of the Supplier, an instruction infringes the Data Protection Legislation.
    • Each party shall ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the other party, 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 its 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 it).
    • The Client consents to the Supplier appointing third-party processors of personal data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 6 and in either case which the Supplier reflects and will continue to reflect the requirements of the Data Protection Legislation. As between the Client and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 6.
    • Either party may, at any time on not less than 30 days’ notice, revise this clause 6 by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
    • The Supplier shall continue to hold and maintain ISO27001 certification throughout the agreement and will notify the Client if there are any changes to the Supplier’s certification status.
24. Third party providers
    • The Client acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk. The Supplier makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Client, with any such third party. Any contract entered into and any transaction completed via any third-party website is between the Client and the relevant third party, and not the Supplier. The Supplier recommends that the Client refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website. The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
    • The Client further agrees and acknowledges that the Supplier may use third parties in delivering the Services. In the event such third parties are used by the Supplier on behalf of the Client, the Supplier excludes any and all liability for any actions and/or omissions caused by such third parties in delivering the Services to the fullest extent permissible by law.
25. Supplier’s obligations
    • The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
    • The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of 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, Supplier will, at its expense, use commercial endeavours to correct any such non-conformance promptly, or 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 8.1.
    • The Supplier:
26. does not warrant that:
    • the Client’s use of the Services will be uninterrupted or error-free;
    • that the Services, Documentation and/or the information obtained by the Client through the Services will meet the Client’s requirements; or the Software or the Services will be free from Vulnerabilities.
27. 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 Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    • This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
    • The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
28. Client’s obligations
    • The Client shall:
29. provide the Supplier with:
    • all necessary co-operation in relation to this agreement; and
    • all necessary access to such information as may be required by the Supplier;

in order to provide the Services, including but not limited to Client Data, security access information and configuration services;

1. without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
2. 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;
3. ensure that the Authorised Users use 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;
4. 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, including without limitation the Services;
5. ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
6. be, to the extent permitted by law and except as otherwise expressly provided in this agreement, solely responsible for procuring, maintaining and securing 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.
   • The Client shall adhere to the Supplier’s Acceptable Use Policy at all times which may be updated from time to time by the Supplier. The Supplier acknowledges that it is the Supplier’s responsibility to check the Acceptable Use Policy for any updates on a regular basis. In the event the Client does not adhere to the Acceptable Use Policy, the Supplier reserves to terminate the provision of the Services and/or charge additional fees in accordance with the policy.
7. Charges and payment
   • The Client shall pay the Subscription Fees, and Professional Services and or Support Fees to the Supplier for the User Subscriptions in accordance with this clause 10 and the Order Form. The Subscription Fees shall be paid annually in advance unless a monthly payment plan has been agreed between the parties.
   • If the Supplier has not received payment on the same day of the due date, and without prejudice to any other rights and remedies of the Supplier:
8. the Supplier may, without liability to the Client, disable the Client’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% per annum above the Bank of England base rate from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
   • All amounts and fees stated or referred to in this agreement:
10. shall be payable in pounds sterling;
11. are, subject to clause b, non-cancellable and non-refundable;
12. are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.
    • The Supplier shall be entitled to increase the Subscription Fees, the fees payable in respect of the additional User Subscriptions purchased pursuant to clause 3 and the support fees payable at the start of each Renewal Period upon 60 days’ prior notice to the Client and the Order Form shall be deemed to have been amended accordingly.
    • In relation to Professional Services Fees, the Client shall pay each undisputed invoice, or undisputed amount of any disputed invoice, for the Professional Services Fees and expenses in full and cleared funds (without deduction or set-off) in advance of any Professional Services undertaken. In the event such payment has not been received in full, the Supplier reserves the right to delay the start of the Professional Services until such time that payment has been made in full without any set off. In the event the Client pays by direct debit, the details of such direct debit payments shall be set out in the Order Form and/or the invoice, as applicable. The Client shall pay each undisputed invoice for the Professional Services Fees in full and cleared funds (without deduction or set-off) in advance unless otherwise agreed.
13. Proprietary rights
    • The Client acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Software, the Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Client any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
    • The Supplier confirms that it has all the rights in relation to the Software, 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.
    • The Client shall remain the owner of any of its Content and confirms to the Supplier that is has all necessary consents in place to allow the Supplier to host, process, cache, record, copy and display the Content solely for the purposes of providing the Services to the Client. The Client retains full rights title and interest in and to the Content and to display and transfer the Content. If the Client chooses to transmit the Content to a third party site which may be linked to or accessible by the Services, the Client shall ensure it has obtained all necessary consent to enable such transmission of the Content and the Client shall remain fully liable on an uncapped basis for such transmissions.
    • 4 The Client represents and warrants that (i) it is the owner or authorised licensee of any and all Content and (ii) will not publish, post, upload, record or otherwise distribute or transmit Content that violates the Acceptable Use Policy or applicable law, and (iii) that the Client has all required permissions and consents from any third party whose personal information you may have posted or uploaded to the Service.
14. Confidentiality
    • Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
15. is or becomes publicly known other than through any act or omission of the receiving party;
16. was in the other party’s lawful possession before the disclosure;
17. is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
18. is independently developed by the receiving party, which independent development can be shown by written evidence.
    • Subject to clause 4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
    • Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
    • A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
    • The Client acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
    • The Supplier acknowledges that the Client Data is the Confidential Information of the Client.
    • 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.
    • The above provisions of this clause 12 shall survive termination of this agreement, however arising.
19. Indemnity
    • The Client shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Client’s use of the Services and/or Documentation, provided that:
20. the Client is given prompt notice of any such claim;
21. the Supplier provides reasonable co-operation to the Client in the defence and settlement of such claim, at the Client’s expense; and
22. the Client is given sole authority to defend or settle the claim.
    • The Supplier shall defend the Client, its officers, directors and employees against any claim that the Client’s use of the Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Client for any amounts awarded against the Client in judgment or settlement of such claims, provided that:
23. the Supplier is given prompt notice of any such claim;
24. the Client provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
25. the Supplier is given sole authority to defend or settle the claim.
    • In the defence or settlement of any claim, the Supplier may procure the right for the Client to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Client without any additional liability or obligation to pay liquidated damages or other additional costs to the Client.
    • In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Client to the extent that the alleged infringement is based on:
26. a modification of the Services or Documentation by anyone other than the Supplier; or
27. the Client’s use of the Services or Documentation in a manner contrary to the instructions given to the Client by the Supplier; or
28. the Client’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
    • The foregoing and clause b state the Client’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
29. Limitation of liability

WARNING: you are strongly advised to read this clause.

• Except as expressly and specifically provided in this agreement:

1. the Client assumes sole responsibility for results obtained from the use of the Services, Support Services, any Professional 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 Services, Support Services any Professional Services, or any actions taken by the Supplier at the Client’s direction;
2. 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 applicable law, excluded from this agreement; and
3. the Services, Professional Services and Support Services and the Documentation are provided to the Client on an “as is” basis.
   • Nothing in this agreement excludes the liability of the Supplier:
4. for death or personal injury caused by the Supplier’s negligence; or
5. for fraud or fraudulent misrepresentation.
   • Subject to clause 1 and clause 14.2:
6. 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
7. the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 2), 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 125% of the Subscription Fees paid for the User Subscriptions during the 12 months immediately preceding the date on which the claim arose.
8. Term and termination
   • This agreement shall, unless otherwise terminated as provided in this clause 15, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
9. either party notifies the other party of termination, in writing, at least 60 days before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
10. otherwise terminated in accordance with the provisions of this agreement;

and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term. In the event  the Client has received an incentive offer from the Supplier for a multi-year contract, the minimum term will be set out in the Order Form.

• The Client shall not be permitted to terminate the Agreement outside of the rights set out in Clauses 15.1 and 15.3. In the event, the Supplier grants the Client the right to terminate early, the Client shall pay all remaining fees up to and including the end date of each Initial Subscription Term or Renewal Period (as applicable) with an additional £150 plus VAT upon 14 days from the date of invoice. Any fees which have been paid in advance are non-refundable.
• 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:

1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 30 days after being notified in writing to make such payment;
2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
3. 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, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
4. 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;
5. 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;
6. 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;
7. 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;
8. 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;
9. 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; or
10. 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 c to clause i (inclusive).
    • On termination of this agreement for any reason:
11. all licences granted under this agreement shall immediately terminate and the Client shall immediately cease all use of the Services and/or the Documentation;
12. all online access shall be disabled;
13. the Supplier shall make all data available in standard CSV format. All data can be exported via the platform at any time during the agreement. The Client must extract all data prior to the termination of the agreement. 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; and
14. 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.
    • An employee profile is required for each employee managed by the Service. Active employees are defined as those currently managed by the system. Any employee that leaves the Client’s business and no longer requires management by the system will be moved to an archive area and will be excluded from active employee count for any Renewal Period.
15. Force majeure

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, provided that the Client is notified of such an event and its expected duration.

17. Conflict

If there is an inconsistency between any of the provisions in the main body of this agreement and the Order Form, the provisions of the Order Form shall prevail.

18. Variation

No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

19. 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.

20. 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.

21. Severance
    • If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.
    • If any provision or part-provision of this agreement is deemed deleted under clause 1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. Entire agreement
    • This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
    • Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
    • Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    • Nothing in this clause shall limit or exclude any liability for fraud.
23. Assignment
    • 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.
    • 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.
24. 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).

25. Third party rights

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.

26. Notices
    • 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 fax to the other party’s fax number as set out in this agreement.
    • A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am 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 fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).

27. 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.

28. 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).

Schedule 1 – Support Services Terms

1. Definitions
   • These Support Services Terms shall apply to any Support Services provided by the Supplier. The terms in these Support Services Terms shall have the following meanings or otherwise be defined as in the agreement:

2. Scope of Support Services
   • Supplier shall, provide the following Support Services:
3. such technical advice and support via the Servicedesk as the Client may, from time to time, reasonably request to resolve queries and difficulties relating to the Service;
4. Corrective Maintenance; and
5. online access to any technical support bulletins whether of Supplier or of any relevant third party, that may in the reasonable opinion of Supplier be likely to affect the Software.
6. Support Requests and Corrective Maintenance
   • The Client may place a Support Request via the Servicedesk and Supplier shall provide responses to Support Requests via email, telephone or the Servicedesk.
   • Upon receipt of a Support Request, Supplier shall use reasonable endeavours to respond to the Client via the Servicedesk and then commence any Corrective Maintenance.
   • The Client shall provide all information available to it in relation to any Error and reasonably cooperate with the Supplier to assist the Supplier in diagnosing and resolving the Error.
   • Failures of the Client Computing Environment which are caused by any third party are expressly excluded in the Support Services and the Supplier is not required to resolve them. When a Support Request is identified as being caused by such a problem the request shall be closed.
   • Where the Service is not hosted by Supplier it is the Client’s responsibility to make sure the Client Computing Environment is in good working order and any browser software is up to date with the latest version prior to raising a Support Request with Supplier as related information may will be required in any investigation.
   • Where a Support Request is identified as being a request for functionality that is not within the scope of the Software (as set out below) shall be classified as a Change Control Request and the Support Request shall be closed.

Schedule 2 – Professional Services Terms

1. Definitions
   • These Professional Services Terms form part of the agreement and are incorporated into the agreement. Except as defined in this Schedule 2, capitalised terms shall have the meanings given to them in the agreement.
   • The following definitions in this paragraph 1 apply in this Schedule 2 (Professional Services).
     Deliverable(s): means any deliverable or output to be provided to Client in connection with a Professional Service as set out in the Order Form, excluding any client materials contained in the Deliverables and the Software;
   • To the extent applicable to the Professional Services, in the event of conflict with the terms of this Schedule 2 and the agreement, the provisions in this Schedule 2 shall take precedence and in the event of a conflict with the terms of this Schedule 2 and an Order Form, the provisions of the Order Form shall take precedence over this Schedule 2.
2. Provision of Professional Services
   • These Professional Services Terms apply when a Client purchases Professional Services from the Supplier under an Order Form.
   • The Supplier will provide the Professional Services in accordance with the Order Form.
   • The Supplier shall use its reasonable endeavours to complete any Deliverables and meet any performance dates in each case as set out in the Order Form, but unless otherwise expressly set out in any Order Form any performance dates shall be estimates only and time shall not be of the essence for the provision of any Deliverables.
   • Unless otherwise agreed in the Order Form, the Professional Services shall be delivered remotely. Where the Client requires Professional Services to be delivered in person, the Client shall be responsible for paying for any reasonable expenses incurred as a result of or related to the Clients in-person Professional Services requirements, including all reasonable costs of travelling and accommodation.
   • The Professional Services shall commence on the date as set out in the applicable Order Form, or as otherwise agreed by the Parties in writing.
3. Client Obligations and Timetable Management
   • The provision of the Professional Services is dependent upon the Client, at all times and in a timely manner:
4. supplying a qualified project manager to represent the Client and co-operate and work with the Supplier during the entire Professional Services engagement;
5. providing the Supplier with access to the Client site(s) (where applicable) at all reasonable times and such equipment, systems and technical services as they may reasonably require for the performance of the Professional Services;
6. ensure that the Supplier has such access to and full co-operation of the technical and managerial personnel of the Client and any applicable third parties who have the appropriate skill, experience and knowledge as the Supplier may reasonably require to perform the Professional Services;
7. providing the Supplier with information, specifications, data or instructions of sufficient detail, accuracy and completeness as are reasonably required by the Supplier;
8. ensuring that any equipment, operating systems and other software which the Supplier is requested by the Client to use or modify and any material or information provided to the Supplier is either owned by the Client or that the Client has all necessary rights to authorise the Supplier to use or modify it; and
9. performing any additional obligations or dependencies specified in the Order Form.
   • Where the Supplier is prevented from performing its obligations under the Order Form as a result of any failure or delay by the Client to perform its obligations or dependencies under the agreement then, without prejudice to the Supplier’s other rights or remedies, the Supplier shall be entitled to:
10. request a meeting with the Client’s senior management and Client shall make relevant personnel from its senior management available to discuss and, where applicable, agree the reasons for and the consequences of such failure or delay; and/or
11. submit a Change Control Request for execution by Client, which sets forth any amendments to the provisions of the Agreement as a result of any such delay or failure by Client, including the Fees and/or the Timetable. Client shall not unreasonably withhold or delay agreement under this paragraph 3.
    • Without prejudice to any other right or remedy available to the Supplier, the Supplier will not be liable for any failure to comply with any timetable or any other obligation under the agreement, if such failure is as a result of the Client’s failure to perform in a timely manner or delay in performing its obligations or dependencies under the agreement.
    • The Client agrees to adhere to the dates scheduled for provision of the Professional Services by the Supplier as stated in the applicable Order Form or otherwise agreed between the parties in writing. If the Client wishes to reschedule or cancel the dates for the provision of the Professional Services, the Supplier will use reasonable endeavours to re-assign allocated resources to other clients.  If such re-assignment is not possible and the Client has not provided more than fourteen (14) days advance written notice, then unless otherwise stated in the applicable Order Form, the Client shall be liable to pay the following cancellation charges (“Cancellation Charges”) relating to this action, in addition to any specific costs relating to cancelling pre-booked travel arrangements and to unpaid Professional Services Fees (if any) for any Professional Services work that has been performed:
12. if dates are changed or cancelled at the Client’s request more than fourteen (14) days before the scheduled start date, no Cancellation Charges are payable;
13. if dates are changed or cancelled between seven (7) days and fourteen (14) days before the scheduled start date, Cancellation Charges equivalent to fifty percent (50%) of the Professional Services Fees for the Professional Services to be provided at that time will be payable;
14. if dates are changed or cancelled less than seven (7) days before the scheduled start date, Cancellation Charges equivalent to one hundred percent (100%) of the Professional Services Fees for the Professional Services to be provided at that time will be payable.
    • If there is non-attendance of the training event, the full cost of the training event will be recovered from the Client.
    • Online training events can be recorded on request.
    • Data imports may require the system to be taken offline whilst the import is undertaken and checked.
    • System changes will be provided in test scenarios for sign off before deployed to the user base.

Appendix A

1. Acceptable use policy for the Service

This Acceptable Use Policy (“Policy”) outlines unacceptable use the Service which interact with, or access, Activ People HR and the Service.  This Policy is in addition to any other terms and conditions under which the Supplier provides the Services to you.

The Supplier may make reasonable modifications to this Policy from time to time by posting a new version of this document on the the Supplier’s web site at “http://www.activpeoplehr.co.uk/terms ” (or any successor URL(s)).   Revisions are effective immediately upon posting.  Accordingly, we recommend that you visit the the Supplier’s Web site regularly to ensure that your activities conform to the most recent version. Questions about this Policy (e.g. whether any contemplated use is permitted) and reports of violations of this Policy should be directed to “[email protected]”.

The examples listed in this Policy are not exhaustive.  Prohibited uses and activities include, without limitation, any use of the Services in a manner that, in the Supplier’s reasonable judgment, involves, facilitates, or attempts any of the following:

violating any law of, or committing conduct that is tortuous or unlawful in, any applicable jurisdiction;

accessing, sending, receiving, displaying, performing, disclosing, storing, or executing any Content a) in violation of any copyright, right of publicity, patent, trademark, service mark, trade name, trade secret or other intellectual property right, b) in violation of any applicable agreement, or c) without authorization;

deleting or altering author attributions, copyright notices, or trademark notices, unless expressly permitted in writing by the owner;

obtaining unauthorised access to any system, network, service, or account;

interfering with service to any user, site, account, system, or network by use of any program, script, command, or otherwise;

introducing or activating any viruses, worms, harmful code and/or Trojan horses;

holding the Supplier, its affiliates, officers, employees up to public scorn or ridicule; and/or

reselling the Service in whole or in part, to any entity or individual, without the Supplier’s prior written consent, or misrepresenting your relationship with the Supplier.

2. Security and Privacy

Login names and passwords must be kept secret and not be communicated to any third party. the Supplier must be notified immediately if they are compromised. If a Client forgets or loses their password, they will need to use the online password reset or contact their data controller.

Clients are responsible for all traffic that is sent from their account It is therefore the Client’s responsibility to ensure that all software is virus-free and up-to-date with all relevant security patches. If the Supplier become aware of suspicious traffic or content related to a customer account, the Supplier have an obligation to our other clients to take urgent measures to block that traffic. This involve suspending the account access until the issue has been resolved. The Supplier understands that in many cases a Client may not be responsible for or aware of the problem, and therefore will work with the Client to resolve the issue as efficiently as possible to restore normal service.

3. Personal Data

It is the Client’s responsibility as the Data Controller to obtain and maintain records of the consent from their employees regarding any personal data held within Activ People HR.

Appendix B

Data Processing Details

1. Nature and purpose of the processing:

To provide staff appraisal, training records management, absence management and hosting of staff handbook.

Duration of the processing:

The contract term.

2. Type of Personal Data:

Absence will manage the planned leave and unplanned absence records for the employees registered in the system. The employee profile will store employee data required for the management of the absence including name, email address, job role and work patterns.

The employee profile in Activ Absence can be used to store Personal Information about the employee. Specifically home address and contact details, date of birth, marital status, emergency contact details, nationality, ethnicity, disability and gender. The personal information section can also hold the following employee identity information; National Insurance or Tax ID, Passport number and Driver Licence number.

Performance Management manages employee appraisals including the staff objectives and performance against these objectives, the employees competency ratings and any feedback and comments received from the employees manager and peers.

Employee Documents allows the storage of document attachments against an employee. The purpose of these attached documents can be varied such as signed contracts, employee references and back ground checks, letters and communications with the employee etc. The limiting factor in the scope of these attachments is that they must be individual employee centric.

Handbook allows the central storage, distribution and acknowledgment of company policies, procedures and other company documents.

Training stores the employees training records, it holds each employees skills and competency levels, training attended and qualifications and experience.

Timesheets stores the employees timesheet records, the approval data and any associated comments.

3. Categories of Data Subjects:

Employees and contractors of the Client

4. Processing Instructions

As notified by the Client in writing from time to time.

TECHNICAL AND ORGANISATIONAL MEASURES

5. Data Sovereignty

All Activ People HR servers, database and backups are stored at UK based Hosting providers. Each hosting provider is ISO27001 certified and reviewed at least once a year.

6. Data Controls

Data At Rest

Each Activ People HR deployment is implemented in a standalone database.

Each database is encrypted.

There is no client software installed on the physical servers that can view the database directly.

The database servers are protected by a separate hardware firewall with all non-required ports disabled.

Data In Transit

All interaction with the Activ People HR modules is via a SSL connection, the information transferred to and from the Web Browser is encrypted TLS 1.2 or higher.

7. Backups

Daily Backups – The application data and configurations are backed up each night and maintained for 30 days.

Ad hock Backups – Prior to any application upgrades or data imports the client dataset is backed up, these backups are kept for a period of 60 days.

All backups are encrypted and password protected.

8. Availability

The Activ People HR solutions are hosted on a cluster of servers with load balancing. This ensures the solutions are always available even in the event of a server failure.

9. Monitoring

Each server is monitored 24/7 for performance and availability.

If a server’s performance falls below a defined threshold, an alert is sent to the Codel Software support team.

If a server becomes unavailable an alert is sent to the Supplier’s support team and escalated to the Codel management team.