SaaS Terms & Conditions of Use

PARTIES

  • Engage Technology Partners Limited (the “Provider”), and;
  • the Customer(s) stated in the Order (the “Customer”).

BACKGROUND

  1. The Provider has developed and provides a service consisting of internet access to its software, hosted from a remote computer location, for the purpose of providing recruitment related solutions to businesses, including vacancy management, compliance and payroll.
  2. The Customer wishes to use the Provider’s service. The Customer may also wish to offer the service to other third parties related to the Services including but not limited to Candidates.
  3. The Provider and the Customer therefore wish to enter into a contract in accordance with the provisions of this Agreement.

AGREEMENT

1. Definitions
1.1 Except to the extent expressly provided otherwise, in this Agreement:
Account” means an account enabling a person to access and use the Hosted Services;
Affiliate” means an entity that Controls, is Controlled by, or is under common Control with the relevant entity;
Agreement” means this agreement including any Schedules, and any amendments to this Agreement from time to time;
Business Day” means any weekday other than a bank or public holiday in England;
Business Hours” means the hours of 09:00 to 18:00 GMT/BST on a Business Day;
Candidate” means the person(s) who may be, or have been, placed into work by the Customer and for whom the Provider may offer related support services;
Candidate Personal Data” means any Personal Data that is processed by the Provider or Controller in relation to this Agreement;
Charges” means the following amounts:
(a) the amounts specified in the Order;
(b) such amounts as may be agreed in writing by the parties from time to time; and
(c) amounts calculated by multiplying the Provider’s standard time-based charging rates (as notified by the Provider to the Customer before the date of this Agreement) by the time spent by the Provider’s personnel performing any Support Services that fall outside of the standard service;
(d) amounts charged at the outset of any set-up work which are subsequently credited to the Customer account when their service is live. Such amounts are non-refundable.
Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);

Customer Confidential Information” means:
(a) any information disclosed by (or on behalf of) the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked as “confidential”; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) the Customer Data;
Customer Data” means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer;

Customer Indemnity Event” has the meaning given to it in Clause 17.3;
Data Protection Laws” means the Data Protection Act 2018, Regulation (EU) 2016/679 (“Regulation”) and all laws implementing them in each case as may be replaced, extended or amended from time to time.
Documentation” means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer at onboarding;
Effective Date” means the date of execution of this Agreement;
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
Hosted Services” means the Engage platform service(s), as specified in Schedule1, which will be made available by the Provider to the Customer in accordance with the Order as a service via the internet in accordance with this Agreement;
Hosted Services Defect” means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary its intended use and/or that described in Customer training, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Services Specification;
Hosted Services Specification” means the specification for the Platform and Hosted Services set out in the Order and in the Documentation;
Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
Maintenance Services” means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
Order” means the commitment to purchase the Services.
Personal Data” has the meaning given to it in the Data Protection Act 2018, Regulation (EU) 2016/679 (“Regulation”)
Platform” means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
Provider Indemnity Event” has the meaning given to it in Clause 16.1;
Schedule” means any schedule attached to the main body of these Terms and Conditions of Use;
Services” means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
Service modules” Engage offers three different service modules and the Customer will elect supply of one or more. The service modules are a) Vendor Management Service (VMS), b) Back Office Solution (BOS) and c) Outsourced Payroll (OP)
Support Services” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
Supported Web Browser” means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
Term” means the term of this Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2;
Update” means a hotfix, patch or minor version update to any Platform software; and
Upgrade” means a major version upgrade of any Platform software.

 

2. Term
2.1 This Agreement shall come into force upon the Effective Date.
2.2 This Agreement shall continue in force indefinitely, subject to termination in accordance with Clause 19 or any other provision of the Agreement.

 

3. Set Up Services (BOS only)
3.1 The Provider shall provide the Set Up Services to the Customer.
3.2 The Provider shall use reasonable endeavours to ensure that the Set Up Services are provided in accordance with the timetable set out in Schedule 6 (BOS only)
3.3 The Customer acknowledges that a delay in the Customer performing its obligations in this Agreement may result in a delay in the performance of the Set Up Services; and subject to Clause 18.1 the Provider will not be liable to the Customer in respect of any failure to meet the Set Up Services timetable to the extent that that failure arises out of a delay in the Customer performing its obligations under this Agreement.
3.4 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that may arise out of the performance of the Set Up Services by the Provider shall be the exclusive property of the Provider.

 

4. Hosted Services
4.1 The Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer during the Term.
4.3 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
(b) the Hosted Services may be used by the named users identified by the Customer and provided with log-in credentials by the Provider;
4.4 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not permit any unauthorised person to access or use the Hosted Services;
(b) the Customer must not make any alteration to the Platform.
4.5 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.
4.6 The parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Services.
4.7 The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with Schedule 1 (Acceptable Use Policy).
4.8 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.9 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.10 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
4.11 The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.

 

5. Maintenance Services
5.1 The Provider shall provide the Maintenance Services to the Customer during the Term.
5.2 The Provider shall provide the Maintenance Services with reasonable skill and care.
5.3 The Provider shall provide the Maintenance Services in accordance with Schedule 3 (Maintenance SLA).
5.4 The Provider may suspend the provision of the Maintenance Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Services on this basis.

 

6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall provide the Support Services with reasonable skill and care.
6.3 The Provider shall provide the Support Services in accordance with Schedule 4 (Support SLA).
6.4 The Provider may suspend the provision of the Support Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support Services on this basis.

 

7. Customer obligations
7.1 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide to the Provider, or procure for the Provider, such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licences, consents and permits,
as are reasonably necessary to enable the Provider to perform its obligations under this Agreement.
7.2 The Customer must provide to the Provider, or procure for the Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Provider to enable the Provider to perform its obligations under this Agreement.

 

8. Customer Data
8.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers to the extent reasonably required for the performance of the Provider’s obligations and the exercise of the Provider’s rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement.
8.2 The Customer understands that the Provider will communicate directly with the Candidate and will invite the Candidate to enter into a service contract with the Provider for the purposes of formalising the services to be provided to the Candidate. For avoidance of doubt, this contract will in no way facilitate the Provider to act in competition with the Customer.
8.3 The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
8.4 The Provider shall create a back-up copy of the Customer Data at least daily and shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken.
8.5 Within the period of 1 Business Day following receipt of a written request from the Customer, the Provider shall use all reasonable endeavours to restore to the Platform the Customer Data stored in any back-up copy created and stored by the Provider in accordance with Clause 8.3. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.

 

9. No assignment of Intellectual Property Rights
9.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.

 

10. Charges
10.1 The Customer shall pay the Charges to the Provider in accordance with this Agreement.
10.2 If the Charges are based in whole or part upon the time spent by the Provider performing the Services, the Provider must obtain the Customer’s written consent before performing Services that result in any estimate of time-based Charges given to the Customer being exceeded or any budget for time-based Charges agreed by the parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Provider any Charges in respect of Services performed in breach of this Clause 10.2.
10.3 All amounts stated in or in relation to this Agreement are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Provider.
10.4 The Provider may elect to vary any element of the Charges by giving to the Customer not less than 60 days’ written notice of the variation. At such point the Customer may elect to terminate the agreement in accordance with clause 19 Termination.

 

11. Payments
11.1 The Provider shall issue invoices for the Charges to the Customer on a monthly basis.
11.2 The Customer must pay the Charges by direct debit, which must be in place before the services commence.
11.3 The Customer must pay the Charges to the Provider within the period of 14 days following the issue of an invoice in accordance with this Clause 11.
11.4 If the Customer does not pay any amount properly due to the Provider under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.

 

12. Provider’s confidentiality obligations
12.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent;
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider’s own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information.
12.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
12.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
12.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
12.5 The restrictions in this Clause 12 do not apply to non-confidential Customer information that the Customer has agreed may be made public by the Provider for the purposes of marketing the Provider’s services to other Customers.

 

13. Data protection
13.1 Each party acknowledges that the other is a controller (as defined at Article 4(7) GDPR) in that parties’ own right and is a joint controller to the extent that the parties jointly determine the purposes and means of processing of the Candidate Personal Data. In any event each party shall comply with the Data Protection Laws with respect to the processing of the Candidate Personal Data.
13.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
13.3 The Customer shall supply to the Provider, and the Provider shall process, in each case under or in relation to this Agreement, the Personal Data of data subjects falling within the categories specified in Part 1 of Schedule 5 (Data processing information) and of the types specified in Part 2 of Schedule 5 (Data processing information).
13.4 The Provider shall process the Candidate Personal Data during the Term and for as long as required by statutory or tax authorities or for as long as is required for the furtherance of the Provider’s business activities.
13.5 Each party shall
(a) ensure that persons authorised to process the Candidate Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality;
(b) each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Candidate Personal Data, including those measures specified in Part 4 of Schedule 5 (Data processing information).
(c) ensure that any third party processor it engages with under this agreement is subject to equivalent legal obligations as those imposed on the Provider by this Clause 13.
(d) insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the other party with the fulfilment of the other party’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws.
(e) assist the other party in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws.
(f) make available to the other party all information necessary to demonstrate the its compliance with its obligations under this Clause 14 and the Data Protection Laws.
13.6 The Provider shall allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Provider’s processing of Candidate Personal Data with the Data Protection Laws and this Clause 13. The Provider may charge the Customer at its standard time-based charging rates for any work performed by the Provider at the request of the Customer pursuant to this Clause 13.6.
13.7 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.

 

14. Warranties
14.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider’s rights and the fulfilment of the Provider’s obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
14.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(b) the Hosted Services will be free from Hosted Services Defects;
(c) the application of Updates and Upgrades to the Platform by the Provider will not introduce any Hosted Services Defects into the Hosted Services;
(d) the Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(e) the Platform will incorporate security features reflecting the requirements of good industry practice.
14.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
14.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
14.5 If the Provider reasonably determines, or any third party alleges, that the use of the Hosted Services by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Provider may at its own cost and expense:
(a) modify the Hosted Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the Hosted Services in accordance with this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
14.7 All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.

 

15. Acknowledgements and warranty limitations
15.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
15.3 The Customer acknowledges that the Hosted Services are designed to be compatible only with that software and those systems specified as compatible in the Hosted Services Specification; and the Provider does not warrant or represent that the Hosted Services will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
15.5 Subject to clause 15.6 the Customer acknowledges that the Provider is a controller (as defined in Article 4 (7) GDPR) in respect of the Candidate Personal Data and that the Provider may enter into terms with Candidates for the provision of additional services through the Platform and which are outside the scope of this Agreement.
15.6 The Provider acknowledges and agrees that throughout the term of this Agreement its shall not act in competition with the Customer including but not limited to offering the services of an employment business or employment agency (as defined in section 13 Employment Agencies Act 1973).
15.7 The Provider acknowledges and agrees that aside from the parties mutual obligations under the Data Protection Laws, Personal Data processed pursuant to this Agreement shall not be sold or otherwise used for the Provider’s commercial advantage. For the avoidance of doubt this shall not preclude the Provider contacting potential new customers as a result of a referral made to the Provider by a Candidate.

 

16. Indemnities
16.1 The Provider shall indemnify and shall keep indemnified the Customer against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Customer and arising directly or indirectly as a result of any breach by the Provider of this Agreement (a “Provider Indemnity Event”).
16.2 The Customer must:
(a) upon becoming aware of an actual or potential Provider Indemnity Event, notify the Provider;
(b) provide to the Provider all such assistance as may be reasonably requested by the Provider in relation to the Provider Indemnity Event;
(c) allow the Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Provider Indemnity Event; and
(d) not admit liability to any third party in connection with the Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Provider Indemnity Event without the prior written consent of the Provider,
and the Provider’s obligation to indemnify the Customer under Clause 16.1 shall not apply unless the Customer complies with the requirements of this Clause 16.2
16.3 The Customer shall indemnify and shall keep indemnified the Provider against any and all liabilities, damages, losses, costs and expenses (including legal expenses and amounts reasonably paid in settlement of legal claims) suffered or incurred by the Provider and arising directly or indirectly as a result of any breach by the Customer of this Agreement (a “Customer Indemnity Event”).
16.4 The Provider must:
(a) upon becoming aware of an actual or potential Customer Indemnity Event, notify the Customer;
(b) provide to the Customer all such assistance as may be reasonably requested by the Customer in relation to the Customer Indemnity Event;
(c) allow the Customer the exclusive conduct of all disputes, proceedings, negotiations and settlements with third parties relating to the Customer Indemnity Event; and
(d) not admit liability to any third party in connection with the Customer Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Customer Indemnity Event without the prior written consent of the Customer,
and the Customer’s obligation to indemnify the Provider under Clause 16.3 shall not apply unless the Provider complies with the requirements of this Clause 16.4.
16.5 The indemnity protection set out in this Clause 16 shall be subject to the limitations and exclusions of liability set out in this Agreement.
16.6 The indemnity protection set out in this Clause 16 does not extend to Customers of the Customer named as party to this agreement or employees of Customers named as party to this agreement.

 

17. Limitations and exclusions of liability
17.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
17.2 The limitations and exclusions of liability set out in this Clause 17 and elsewhere in this Agreement:
(a) are subject to Clause 17.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
17.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
17.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
17.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.
17.6 Neither party shall be liable to the other party in respect of any loss of use or production.
17.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
17.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software; providing that this Clause 17.8 shall not protect the Provider unless the Provider has fully complied with its obligations under Clause 8.3 and Clause 8.4.
17.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
17.10 The total liability of each party to the other party respect of any event or series of related events shall not exceed 125% of the fees paid or payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.

 

18. Force Majeure Event
18.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
18.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
18.3 A party whose performance of its obligations under this Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.

 

19. Termination
19.1 Either party may terminate this Agreement by giving to the other party not less than 30 calendar days’ written notice of termination.
19.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party commits any material breach of this Agreement, and the breach is not remediable;
(b) the other party commits a material breach of this Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied; or
(c) the other party persistently breaches this Agreement (irrespective of whether such breaches collectively constitute a material breach).
19.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
19.4 The Provider may terminate this Agreement immediately by giving written notice to the Customer if:
(a) any amount due to be paid by the Customer to the Provider under this Agreement is unpaid by the due date and remains unpaid upon the date that that written notice of termination is given; and
(b) the Provider has given to the Customer at least 30 days’ written notice, following the failure to pay, of its intention to terminate this Agreement in accordance with this Clause 19.4.

 

20. Effects of termination
21.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 4.10, 11.2, 11.4, 12, 13.1, 13.3, 13.4, 13.5, 13.6, 13.7, 16, 17, 20, 23, 24, 25, 26, 27.1, 27.2, 28, 29 and 30.
20.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
20.3 Within 7 days following the termination of this Agreement for any reason:
(a) the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
(b) the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the parties’ other legal rights.

 

21. Notices
21.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out in Clause 21.2:
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting,
providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
21.2 The Provider’s contact details for notices under this Clause 21 are as follows: Engage Technology Partners Limited, 12 London Mews, London W2 1HY.
21.3 The addressee and contact details set out in Clause 21.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 21.

 

22. Subcontracting
22.1 Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement, providing that the Provider must give to the Customer, promptly following the appointment of a subcontractor, a written notice specifying the subcontracted obligations and identifying the subcontractor in question.
22.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
22.3 Notwithstanding the provisions of this Clause 22 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.

 

23. Assignment
23.1 The Provider must not assign, transfer or otherwise deal with the Provider’s contractual rights and/or obligations under this Agreement without the prior written consent of the Customer, such consent not to be unreasonably withheld or delayed, providing that the Provider may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Provider or to any successor to all or a substantial part of the business of the Provider from time to time.
23.2 The Customer must not assign, transfer or otherwise deal with the Customer’s contractual rights and/or obligations under this Agreement without the prior written consent of the Provider, such consent not to be unreasonably withheld or delayed, providing that the Customer may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Customer or to any successor to all or a substantial part of the business of the Customer from time to time.

 

24. No waivers
24.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
24.2 No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of this Agreement.

 

25. Severability
25.1 If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
25.2 If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.

 

26. Third party rights
26.1 This Agreement is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
26.2 The exercise of the parties’ rights under this Agreement is not subject to the consent of any third party.

 

27. Variation
27.1 This Agreement may not be varied except in accordance with this Clause 27.
27.2 This Agreement may be varied by means of a written document signed by or on behalf of each party.
27.3 The Provider may vary this Agreement by giving to the Customer at least 30 days’ written notice of the proposed variation, providing that if the Provider gives to the Customer a notice under this Clause 27.3, the Customer shall have the right to terminate this Agreement by giving written notice of termination to the Provider at any time during the period of 14 days following receipt of the Provider’s notice.

 

28. Entire agreement
28.1 The main body of this Agreement and the Schedules shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
28.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement.
28.3 The provisions of this Clause 28 are subject to Clause 17.1.

 

29. Law and jurisdiction
29.1 This Agreement shall be governed by and construed in accordance with English law.
29.2 Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.

 

30. Interpretation
30.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
30.2 The Clause headings do not affect the interpretation of this Agreement.
30.3 References in this Agreement to “calendar months” are to the 12 named periods (January, February and so on) into which a year is divided.
30.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.

 

SCHEDULE 1 (ACCEPTABLE USE POLICY)
1. Introduction
1.1 This acceptable use policy (the “Policy“) sets out the rules governing:
(a) the use of the website (URL to be confirmed by the Provider for Customer, any successor website, and the services available on that website or any successor website (the “Services“); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Services (“Content“).
1.2 References in this Policy to “you” are to any customer for the Services and any individual user of the Services (and “your” should be construed accordingly); and references in this Policy to “us” are to “Engage” (and “we” and “our” should be construed accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 You must be at least 18 years of age to use the Services; and by using the Services, you warrant and represent to us that you are at least 18 years of age.

 

2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
2.3 You must ensure that all Content complies with the provisions of this Policy.

 

3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person’s legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
3.2 Content must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
3.3 You must ensure that Content is not and has never been the subject of any threatened or actual legal proceedings or other similar complaint.

 

4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are likely to access the Content in question
4.3 Content must not be pornographic or sexually explicit.

 

5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal or natural) must be true; and statements of opinion contained in Content and relating to persons (legal or natural) must be reasonable, be honestly held and indicate the basis of the opinion.

 

6. Negligent advice
6.1 Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
6.2 Content must not consist of or contain any advice, instructions or other information that may be acted upon and could, if acted upon, cause death, illness or personal injury, damage to property, or any other loss or damage.

 

7. Etiquette
7.1 Content must be appropriate, civil and tasteful, and accord with generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive, harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or needless anxiety.
7.4 You must not use the Services to send any hostile communication or any communication intended to insult, including such communications directed at a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Services with material relating to a particular subject or subject area, whether alone or in conjunction with others.
7.7 You must ensure that Content does not duplicate other content available through the Services.
7.8 You must ensure that Content is appropriately categorised.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the Services.

 

8. Marketing and spam
8.1 Content must not constitute or contain spam, and you must not use the Services to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.3 You must not send any spam or other marketing communications to any person using any email address or other contact details made available through the Services or that you find using the Services.
8.4 You must not use the Services to promote or operate any chain letters, Ponzi schemes, pyramid schemes, matrix programs, “get rich quick” schemes or similar letters, schemes or programs.

 

9. Gambling
9.1 You must not use the Services for any purpose relating to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

 

10. Monitoring
10.1 You acknowledge that we may actively monitor the Content and the use of the Services.

 

11. Data mining
11.1 You must not conduct any systematic or automated data scraping, data mining, data extraction or data harvesting, or other systematic or automated data collection activity, by means of or in relation to the Services.

 

12. Hyperlinks
12.1 You must not link to any material using or by means of the Services that would, if it were made available through the Services, breach the provisions of this Policy.

 

13. Harmful software
13.1 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
13.2 The Content must not contain or consist of, and you must not promote or distribute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.

 

SCHEDULE 2 (AVAILABILITY SLA)

1. Introduction to availability SLA
1.1 This Schedule 2 sets out the Provider’s availability commitments relating to the Hosted Services.
1.2 In this Schedule 2, “uptime” means the percentage of time during a given period when the Hosted Services are available at the gateway between public internet and the network of the hosting services provider for the Hosted Services.

2. Availability
2.1 The Provider shall use all reasonable endeavours to ensure that the uptime for the Hosted Services is at least 99.0% during each calendar month.
2.2 The Provider shall be responsible for measuring uptime, and shall do so using any reasonable methodology.

 

3. Service credits
3.1 In respect of each calendar month during which the Hosted Services uptime is less than the commitment specified in Paragraph 2.1, the Customer shall earn service credits in accordance with the provisions of this Part 3.
3.2 The service credits earned by the Customer shall be calculated as: (number of hours’ downtime) divided by (hours in that month) multiplied by 5 and expressed as a percentage of the total monthly fees.
3.3 The Provider shall deduct an amount equal to the service credits due to the Customer under this Part 3 from amounts invoiced in respect of the Charges for the Hosted Services.
3.4 Service credits shall be the sole remedy of the Customer in relation to any failure by the Provider to meet the availability stated Paragraph 2.1.
3.5 Upon the termination of this Agreement, the Customer’s entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by the Provider in respect of Hosted Services following such termination.

 

4. Exceptions
4.1 Downtime caused directly or indirectly by any of the following shall not be considered when calculating whether the Provider has met the uptime stated in Paragraph 2.1:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
(c) a fault or failure of the Provider’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between the Provider and that company;
(d) a fault or failure of the Customer’s computer systems or networks;
(e) any breach by the Customer of this Agreement; or
(f) scheduled maintenance carried out in accordance with this Agreement.

 

SCHEDULE 3 (MAINTENANCE SLA)

 

1. Introduction
1.1 This Schedule 3 sets out the service levels applicable to the Maintenance Services.

 

2. Scheduled Maintenance Services
2.1 The Provider shall where practicable give to the Customer at least 10 Business Days’ prior written notice of scheduled Maintenance Services that are likely to affect the availability of the Hosted Services or are likely to have a material negative impact upon the Hosted Services, without prejudice to the Provider’s other notice obligations under this Schedule 4.
2.2 The Provider shall provide all scheduled Maintenance Services outside Business Hours.

 

3. Updates
3.1 The Provider shall give to the Customer written notice of the application of any security Update to the Platform and at least 10 Business Days’ prior written notice of the application of any non-security Update to the Platform.
3.2 The Provider shall apply Updates to the Platform as follows:
(a) third party security Updates shall be applied to the Platform [promptly following release by the relevant third party, providing that the Provider may acting reasonably decide not to apply any particular third party security Update
(b) the Provider’s security Updates shall be applied to the Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and
(c) other Updates shall be applied to the Platform in accordance with any timetable notified by the Provider to the Customer or agreed by the parties from time to time.

 

SCHEDULE 4 (SUPPORT SLA)

 

1. Introduction
1.1 This Schedule 4 sets out the service levels applicable to the Support Services.

 

2. Helpdesk
2.1 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this Schedule 4.
2.2 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
2.3 The Provider shall ensure that the helpdesk is accessible by telephone and using the Provider’s web-based ticketing system.
2.4 The Provider shall ensure that the helpdesk is operational and adequately staffed during Business Hours during the Term.
2.5 The Customer shall ensure that all requests for Support Services that it may make from time to time shall be made through the helpdesk or ticketing system.

 

3. Response and resolution
3.1 Issues raised through the Support Services shall be categorised as follows:
(a) critical: the Hosted Services are inoperable or a core function of the Hosted Services is unavailable;
(b) moderate: a core function of the Hosted Services is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Services is significantly impaired; and
(d) minor: any impairment of the Hosted Services not falling into the above categories; and any cosmetic issue affecting the Hosted Services.
3.2 The Provider shall determine, acting reasonably, into which severity category an issue falls.
3.3 The Provider shall use reasonable endeavours to respond to requests for Support Services promptly, and in any case in accordance with the following time periods:
(a) critical: 1 Business Hour;
(b) moderate: 4 Business Hours; and
(d) minor: 3 Business Days.
3.4 The Provider shall ensure that its response to a request for Support Services shall include the following information (to the extent such information is relevant to the request): an acknowledgement of receipt of the request, where practicable an initial diagnosis in relation to any reported error, and an anticipated timetable for action in relation to the request.
3.5 The Provider shall assign a dedicated resource to issues in accordance with the following time periods:
(a) critical: 2 Business Hours;
(c) moderate: 4 Business Hours; and
(d) minor: as resource available

 

4. Provision of Support Services
4.1 The Support Services shall be provided remotely, save to the extent that the parties agree otherwise in writing.
5. Limitations on Support Services
5.1 If the total hours spent by the personnel of the Provider performing the Support Services (specific to this Customer) during any calendar month exceed 20 hours then:
(a) the Provider will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and
(b) the Provider may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Charges.
5.2 For the avoidance of doubt, hours spent by the Provider on issue affecting the Platform as a whole and not specific to the named Customer are not included in the 20 hours specific in clause 5.1

5.3 The Provider shall have no obligation to provide Support Services in respect of any issue caused by:
(a) the improper use of the Hosted Services by the Customer or
(b) any alteration to the Hosted Services made without the prior consent of the Provider.

 

SCHEDULE 5 (DATA PROCESSING INFORMATION)

 

1. Categories of data subject
Temporary worker, permanent worker, staff member.

 

2. Types of Personal Data
Worker personal information: name, gender, address, age, mobile number, email, National Insurance, tax code, P45, P60, bank account details.
Payment information: PAYE ref, Accounts ref, HMRC Gateway submission type, Frequency, First paid date of tax year, Holiday scheme(s), Pension scheme(s), Salary sacrifice scheme(s), Authorised contributors, Pay authoriser(s).

 

3. Purposes of processing
To facilitate payroll processing, time & attendance, compliance, billing, MIS reporting.

 

4. Sub-processors of Personal Data
Amazon Web Services (AWS), InTime (BOS only) (both EU).

 

5. Security measures for Personal Data
See ‘Engage Security & Business Continuity Policy’ available on request from the Provider.

 

SCHEDULE 6 (BACK OFFICE SOLUTION (BOS) ONLY)

 

1. Set Up Services
Where the BOS is provided to the Customer set-up typically follows the process steps below, however these will vary depending the Customer’s current recruitment systems e.g. pay & bill or CRM software.

1. Set-up:
a. Contract Signed
b. Onboarding invoice
c. Advise third party of integration requirements*

2. Kick-off
a. Registration, payroll & billing workflows
b. Project discovery questionnaire
c. Project summary
d. Agree weekly project update call

3. Engage platform set-up
a. Engage client set-up
b. Third party to Engage test stack*
c. Third party to Engage in production*

4. CRM to third party integration
a. CRM analysis
b. Mapping configuration document completed
c. Provide configuration to third party
d. CRM to third party data flow test
e. Review for accuracy & fix missing data or change configuration

5. Client services handover
a. Engage customer services introduction
b. Engage customer services schedule

Soft launch
a. Agree launch schedule
b. Register existing workers
c. Training: Engage & third party
d. Parallel payrun
e. Engage billing commences

Full launch
a. First payrun completed
b. Communications enabled
c. Welcome emails sent
*if required

 

2. BOS process timings

 

Payroll processing for Contractors/Temps
1. Customer will supply payroll data to Provider by midday 5 days prior to worker payday
2. Provider will process payroll and make reports available by midday, 4 days prior to the worker payday
3. Customer will approve payroll data by midday 3 days prior to worker payday
4. Provider will process the BACS payments for each payroll cycle by no later than 11pm 2 days prior to the (s) payday
5. Provider will process the full RTI submissions on behalf of the Customer or affiliate in compliance with the HMRC rule
6. Provider will ensure that its payroll system is configured with the more recent version of payroll legislation
7. Provider will fully manage the Customer’s auto enrolment process
8. Provider will issue electronic P45’s to the worker’s email address held within their system
9. Provider will issue electronic P60’s to the worker’s email address held within their system
10. Provider helpdesk will be available from 9am to 6pm Monday to Friday

 

Engage Terms and Conditions of Use (v18.12)