14th August 2024
PARTIES
- Engage Technology Partners Limited (the “Technology Provider”), and;
- the Customer(s) stated in the Order, Supplier Registration Agreement, Supplier Access Agreement, or Deployment Agreement (the “Customer”).
BACKGROUND
- The Technology Provider has developed and provides Software Solutions, for businesses for the management of temporary workers.
- The Customer wishes to use the Technology Provider’s Software Solutions. The Customer may also wish to offer the Software Solutions to other third parties related to the Software Solutions including but not limited to Candidates.
- The Technology 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 Software Solutions;
“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 Technology Provider may offer related support services;
“Candidate Personal Data” means any Personal Data that is processed by the Technology Provider or Controller in relation to this Agreement;
Software Solutions “Control” means the legal power to control (directly or indirectly) the management of an entity (and “Controlled” should be construed accordingly);
“Customer” means any business entity or organisation accessing the Software Solutions;
“Customer Confidential Information” means:
(a) any information disclosed by (or on behalf of) the Customer to the Technology 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 Technology 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 Technology 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 Software Solutions by the Customer;
“Customer Indemnity Event” has the meaning given to it in Clause 16.3;
“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.
“Deployment” means a Software Solution applied to a temporary labour supply chain by the Technology Provider for a Customer to execute a specific temporary labour management strategy.
“Deployment Agreement” means the commitment by the Customer(s) to utilise a Software Solution for a specific Deployment, under specific terms for that Deployment, and the general terms of this Agreement.
“Deployment Type” includes but is not limited to: Internal Labour Desk, or Neutral Vendor, or Master Vendor, or Sole Agency, or Direct Temporary Worker Supply.
“Effective Date” means the date of execution of an Order, Supplier Registration Agreement, Supplier Access Agreement, or Deployment Agreement;
“Fees” means the amounts the Technology Provider charges Customers to access the Software Solutions:
(a) the amounts are specified in the Order, Supplier Registration Agreement, Supplier Access Agreement, or Deployment Agreement;
(b) the amounts may also be agreed in writing by the Parties from time to time; and
(c) for any other solutions or products that fall outside standard Deployments, the amounts will be calculated by multiplying the Technology Provider’s standard time-based charging rates (as notified by the Technology Provider to the Customer before the date of this Agreement) by the time spent by the Technology Provider’s personnel;
(d) the amounts may also include onboarding costs for the Software Solutions..
“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 Software Solutions ” means the Engage platform service(s), as specified in Schedule1, which will be made available by the Technology Provider to the Customer in accordance with the Order, Supplier Registration Agreement, Supplier Access Agreement, or Deployment Agreement as a service via the internet in accordance with this Agreement;
“Hosted Software Solutions Defect” means a defect, error or bug in the Platform having a material adverse effect on the operation, functionality or performance of the Hosted Software Solutions , 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 Software Solutions ;
(b) any use of the Platform or Hosted Software Solutions 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 Software Solutions and any other system, network, application, program, hardware or software not specified as compatible in the Hosted Software Solutions Specification;
“Hosted Software Solutions Specification” means the specification for the Platform and Hosted Software Solutions set out in the Order, Supplier Registration Agreement, Supplier Access Agreement, or Deployment Agreement;
“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, trademarks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Maintenance Software Solutions ” means the general maintenance of the Platform and Hosted Software Solutions , and the application of Updates and Upgrades;
“Order” means the commitment by the Customer to purchase the Software Solutions .
“Parties” means the Technology Provider and the Customer(s).
“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 Technology Provider and used by the Technology Provider to provide the Hosted Software Solutions , including the application and database software for the Hosted Software Solutions , the system and server software used to provide the Hosted Software Solutions , and the computer hardware on which that application, database, system and server software is installed;
“Privacy Policy” is the document linked to this Agreement which sets out the Technology Providers’ treatment of personal data and can be found at https://www.engagetech.com/privacy-policy/.
“Supplier Access Agreement” means the commitment by the Customer to purchase the Software Solutions when invited to supply to a Deployment.
“Technology Provider Indemnity Event” has the meaning given to it in Clause 16.1;
“Supplier Registration Agreement” means the registration by the Customer on the Platform and agreement to be available for invitations to supply to Deployments.
“Schedule” means any schedule attached to the main body of these Terms and Conditions of Use;
“Software Solutions ” means any Software Solutions that the Technology Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
“Support Software Solutions ” means support in relation to the use of, and the identification and resolution of errors in, the Hosted Software Solutions , but shall not include the provision of training Software Solutions ;
“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 Technology 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.
“User(s)” means individuals at the Customer that log-in to the Technology Provider’s Platform to carry out tasks for the management of the Candidates, the User’s Account, and the Customer Software Solutions.
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 any other provision of the Order, Supplier Registration Agreement, Supplier Access Agreement, or Deployment Agreement; or otherwise with Clause 19.
3. Set Up Software Solutions (BOS only)
3.1 The Technology Provider shall provide the Set Up Software Solutions to the Customer.
3.2 The Technology Provider shall use reasonable endeavours to ensure that the Set Up Software Solutions 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 Software Solutions; and subject to Clause 18.1 the Technology Provider will not be liable to the Customer in respect of any failure to meet the Set Up Software Solutions 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 Software Solutions by the Technology Provider shall be the exclusive property of the Technology Provider.
4. Hosted Software Solutions
4.1 The Technology Provider shall create an Account for the Customer and shall provide to the Customer login details for that Account.
4.2 The Technology Provider hereby grants to the Customer a worldwide, non-exclusive licence to use the Hosted Software Solutions 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 Technology Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Hosted Software Solutions may only be used by the officers, employees, agents and subcontractors of either the Customer or an Affiliate of the Customer;
(b) the Hosted Software Solutions may be used by the named users identified by the Customer and provided with log-in credentials by the Technology 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 Technology 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 Software Solutions;
(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 Software Solutions using an Account.
4.6 The Parties acknowledge and agree that Schedule 2 (Availability SLA) shall govern the availability of the Hosted Software Solutions.
4.7 The Customer must comply with Schedule 1 (Acceptable Use Policy) and must ensure that all persons using the Hosted Software Solutions 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 Software Solutions in any way that causes, or may cause, damage to the Hosted Software Solutions or Platform or impairment of the availability or accessibility of the Hosted Software Solutions.
4.9 The Customer must not use the Hosted Software Solutions :
(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 Technology Provider may suspend the provision of the Hosted Software Solutions if any amount due to be paid by the Customer to the Technology Provider under this Agreement is overdue, and the Technology Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Hosted Software Solutions on this basis.
5. Maintenance Software Solutions
5.1 The Technology Provider shall provide the Maintenance Software Solutions to the Customer during the Term.
5.2 The Technology Provider shall provide the Maintenance Software Solutions with reasonable skill and care.
5.3 The Technology Provider shall provide the Maintenance Software Solutions in accordance with Schedule 3 (Maintenance SLA).
5.4 The Technology Provider may suspend the provision of the Maintenance Software Solutions if any amount due to be paid by the Customer to the Technology Provider under this Agreement is overdue, and the Technology Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Maintenance Software Solutions on this basis.
6. Support for Software Solutions
6.1 The Technology Provider shall provide the Support for the Software Solutions to the Customer during the Term.
6.2 The Technology Provider shall provide the Support for the Software Solutions with reasonable skill and care.
6.3 The Technology Provider shall provide the Support for the Software Solutions in accordance with Schedule 4 (Support SLA).
6.4 The Technology Provider may suspend the provision of the Support if any amount due to be paid by the Customer to the Technology Provider under this Agreement is overdue, and the Technology Provider has given to the Customer at least 30 days’ written notice, following the amount becoming overdue, of its intention to suspend the Support for the Software Solutions 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 Technology Provider, or procure for the Technology 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 Technology Provider to perform its obligations under this Agreement.
7.2 The Customer warrants to the Technology Provider that all Users and Candidates introduced to the Platform have given their consent to share their personal data with the Technology Provider. The Customer further confirms that the Customer, Users and Candidates are aware their data may be shared with other Customers within the supply chain necessary for the provision of the Software Solutions .
7.3 The Customer must provide to the Technology Provider, or procure for the Technology Provider, such access to the Customer’s computer hardware, software, networks and systems as may be reasonably required by the Technology Provider to enable the Technology Provider to perform its obligations under this Agreement.
8. Customer Data
8.1 The Customer hereby grants to the Technology 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 Technology Provider’s obligations and the exercise of the Technology Provider’s rights under this Agreement. The Customer also grants to the Technology Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service Technology Providers to the extent reasonably required for the performance of the Technology Provider’s obligations and the exercise of the Technology Provider’s rights under this Agreement, subject always to any express restrictions elsewhere in this Agreement.
8.2 The Customer understands that the Technology Provider will communicate directly with the Candidate and will invite the Candidate to enter into a Software Solution contract with the Technology Provider for the purposes of formalising the Software Solutions to be provided to the Candidate. For avoidance of doubt, this contract will in no way facilitate the Technology Provider to act in competition with the Customer.
8.3 The Customer warrants to the Technology 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 Technology 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 Technology Provider to restore the Hosted Software Solutions 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 Technology 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 Technology Provider in accordance with Clause 8.4. The Customer acknowledges that this process will overwrite the Customer Data stored on the Platform prior to the restoration.
8.6 The Customer hereby grants to the Technology Provider permission to use the Customer’s company name and logo for standard promotional activities and on the Technology Provider’s website.
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 Technology Provider to the Customer, or from the Customer to the Technology Provider.
10. Fees
10.1 The Customer shall pay the Fees to the Technology Provider in accordance with this Agreement.
10.2 If the Fees are based in whole or part upon the time spent by the Technology Provider performing the Software Solutions , the Technology Provider must obtain the Customer’s written consent before performing Software Solutions that result in any estimate of time-based Fees given to the Customer being exceeded or any budget for time-based Fees agreed by the Parties being exceeded; and unless the Customer agrees otherwise in writing, the Customer shall not be liable to pay to the Technology Provider any Fees in respect of Software Solutions 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 Technology Provider.
10.4 The Technology Provider may elect to vary any element of the Fees 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 Technology Provider shall issue invoices for the Fees to the Customer on a monthly basis.
11.2 The Customer must pay the Fees by direct debit, which must be in place before the Software Solutions commence.
11.3 The Customer must pay the Fees to the Technology 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 Technology Provider under this Agreement, the Technology 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. Technology Provider’s confidentiality obligations
12.1 The Technology 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 Technology Provider uses to protect the Technology 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 Technology Provider may disclose the Customer Confidential Information to the Technology 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 Technology Provider with respect to Customer Confidential Information that:
(a) is known to the Technology 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 Technology Provider; or
(c) is obtained by the Technology Provider from a third party in circumstances where the Technology 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 Technology 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 Technology Provider for the purposes of marketing the Technology Provider’s Software Solutions to other Customers.
13. Data protection
13.1 Where the Customer has contracted with the Technology Provider for the provision of Software (as specified in the Order, Supplier Registration Agreement, Supplier Access Agreement or Deployment Agreement) 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 personal data. In any event each party shall comply with the Data Protection Laws with respect to the processing of the personal data.
13.2 Where the Customer has contracted with the Technology Provider for the provision of Software Solutions (as specified in the Order, Supplier Registration Agreement, Supplier Access Agreement or Deployment Agreement) each party acknowledges that the Technology Provider is acting as a processor of personal data on behalf of the Customer, who is acting as the controller (as defined at Article 4(7) GDPR). The Technology Provider shall (i) process such personal data only in accordance with the Customer’s written instructions (unless required by law to act without such instructions); (ii) document and implement a process for the prompt and effective detection, containment, assessment and resolution of any suspected, potential or actual data incident; (iii) not subcontract any processing of such personal data without a written contract ensuring that adequate safeguards are put in place to protect the personal data it processes on behalf of the Customer; and (iv) share personal data with our service providers, who help us to provide the Software Solutions, such as cloud storage, security, application communications, document and identity verification, customer support, backup, and data analytics.; (v) upon notice termination or expiry of the Agreement, at the Customer’s request, delete or allow for the return of all personal data (subject to legal requirements of statutory bodies including but not limited to HMRC); and (vi) not process and/or transfer any such personal data to any country outside the European Economic Area, Switzerland or the United Kingdom without the prior written consent of the Customer and in any case, subject to the Technology Provider ensuring that adequate safeguards are put in place to protect the personal data it processes on behalf of the Customer; and (vii) document and implement a process to provide subject access and allow individuals to exercise their rights under applicable laws.
13.3 The Customer shall supply to the Technology Provider, and the Technology 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 Technology 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 Technology 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 Technology Provider by this Clause 13.
(d) insofar as possible and considering 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 its compliance with its obligations under this Clause 14 and the Data Protection Laws.
13.6 The Technology 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 Technology Provider’s processing of Candidate Personal Data with the Data Protection Laws and this Clause 13. The Technology Provider may charge the Customer at its standard time-based charging rates for any work performed by the Technology 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 Technology Provider warrants to the Customer that:
(a) the Technology Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Technology Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Technology Provider’s rights and the fulfilment of the Technology Provider’s obligations under this Agreement; and
(c) the Technology Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
14.2 The Technology Provider warrants to the Customer that:
(a) the Platform and Hosted Software Solutions will conform in all material respects with the Hosted Software Solutions Specification;
(b) the Hosted Software Solutions will be free from Hosted Software Solutions Defects;
(c) the application of Updates and Upgrades to the Platform by the Technology Provider will not introduce any Hosted Software Solutions Defects into the Hosted Software Solutions ;
(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 Technology Provider warrants to the Customer that the Hosted Software Solutions, 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 Technology Provider warrants to the Customer that the Hosted Software Solutions, 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 Technology Provider reasonably determines, or any third party alleges, that the use of the Hosted Software Solutions by the Customer in accordance with this Agreement infringes any person’s Intellectual Property Rights, the Technology Provider may at its own cost and expense:
(a) modify the Hosted Software Solutions 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 Software Solutions in accordance with this Agreement.
14.6 The Customer warrants to the Technology 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 Technology Provider gives no warranty or representation that the Hosted Software Solutions 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 Technology Provider gives no warranty or representation that the Hosted Software Solutions will be entirely secure.
15.3 The Customer acknowledges that the Hosted Software Solutions are designed to be compatible only with that software and those systems specified as compatible in the Hosted Software Solutions Specification; and the Technology Provider does not warrant or represent that the Hosted Software Solutions will be compatible with any other software or systems.
15.4 The Customer acknowledges that the Technology Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Software Solutions ; and, except to the extent expressly provided otherwise in this Agreement, the Technology Provider does not warrant or represent that the Hosted Software Solutions or the use of the Hosted Software Solutions 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 Technology Provider is a controller (as defined in Article 4 (7) GDPR) in respect of the Candidate Personal Data and that the Technology Provider may enter into terms with Candidates for the provision of additional Software Solutions through the Platform and which are outside the scope of this Agreement.
15.6 The Technology 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 Software Solutions of an employment business or employment agency (as defined in section 13 Employment Agencies Act 1973).
15.7 The Technology 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 Technology Provider’s commercial advantage. For the avoidance of doubt this shall not preclude the Technology Provider contacting potential new customers as a result of a referral made to the Technology Provider by a Candidate.
16. Indemnities
16.1 The Technology 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 Technology Provider of this Agreement (a “Technology Provider Indemnity Event”).
16.2 The Customer must:
(a) upon becoming aware of an actual or potential Technology Provider Indemnity Event, notify the Technology Provider;
(b) provide to the Technology Provider all such assistance as may be reasonably requested by the Technology Provider in relation to the Technology Provider Indemnity Event;
(c) allow the Technology Provider the exclusive conduct of all disputes, proceedings, negotiations and settlements with third Parties relating to the Technology Provider Indemnity Event; and
(d) not admit liability to any third party in connection with the Technology Provider Indemnity Event or settle any disputes or proceedings involving a third party and relating to the Technology Provider Indemnity Event without the prior written consent of the Technology Provider,
and the Technology 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 Technology 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 Technology 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 Technology 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 Technology Provider under Clause 16.3 shall not apply unless the Technology 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 Technology Provider unless the Technology 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 Technology 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 Technology 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 Technology 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 Technology 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
20.1 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 Technology Provider any Fees in respect of Software Solutions provided to the Customer before the termination of this Agreement; and
(b) the Technology Provider must refund to the Customer any Fees paid by the Customer to the Technology Provider in respect of Software Solutions that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the Parties’ other legal rights.
20.4 Except to the extent that this Agreement expressly provides otherwise, upon the expiration or termination of the Order, Supplier Registration Agreement, Supplier Access Agreement, or Deployment Agreement:
(a) access to the ENGAGE platform will be revoked for all Users and Candidates associated with the Customer Account, effective from the termination date.
(b) Customers should advise all Users and Candidates to download any necessary documents and data before the termination date.
(c) the Technology Provider will not be responsible for providing access to documents or data after the contract termination date.
21. Notices
21.1 Any notice under this Agreement, from the Customer to the Technology Provider, must be given by email to: support@engagetech.com.
21.2 Any notice under this Agreement, from the Technology Provider to the Customer must be given by email or system notifications.
22. Subcontracting
22.1 Subject to any express restrictions elsewhere in this Agreement, the Technology Provider may subcontract any of its obligations under this Agreement, providing that the Technology Provider has in place a contract that ensures adequate safeguards are put in place to protect the personal data it processes on behalf of the Customer.
22.2 The Technology 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 Technology Provider may subcontract to any reputable third-party hosting business the hosting of the Platform and the provision of Software Solutions in relation to the support and maintenance of elements of the Platform.
23. Assignment
23.1 The Technology Provider must not assign, transfer or otherwise deal with the Technology 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 Technology Provider may assign the entirety of its rights and obligations under this Agreement to any Affiliate of the Technology Provider or to any successor to all or a substantial part of the business of the Technology 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 Technology 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 Technology Provider may vary this Agreement by giving to the Customer at least 30 days’ written notice of the proposed variation, providing that if the Technology 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 Technology Provider at any time during the period of 14 days following receipt of the Technology 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 Platform and website (URL to be confirmed by the Technology Provider for Customer, any successor website, and the Software Solutions available on that website or any successor website (the “Software Solutions “); and
(b) the transmission, storage and processing of content by you, or by any person on your behalf, using the Software Solutions (“Content“).
1.2 References in this Policy to “you” are to any customer for the Software Solutions and any individual user of the Software Solutions (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 Software Solutions, you agree to the rules set out in this Policy.
1.4 You must be at least 18 years of age to use the Software Solutions; and by using the Software Solutions, you warrant and represent to us that you are at least 18 years of age. 1.5 Use of the Technology Provider’s website and Software Solutions platform is also subject to Terms of Use available at engagetech.com/website-usage
2. General usage rules
2.1 You must not use the Software Solutions in any way that causes, or may cause, damage to the Software Solutions or impairment of the availability or accessibility of the Software Solutions .
2.2 You must not use the Software Solutions :
(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 Software Solutions to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory Software Solutions .
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 Software Solutions 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 Software Solutions for the purpose of deliberately upsetting or offending others.
7.6 You must not unnecessarily flood the Software Solutions 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 Software Solutions .
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 Software Solutions.
8. Marketing and spam
8.1 Content must not constitute or contain spam, and you must not use the Software Solutions to store or transmit spam – which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
8.2 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 Software Solutions or that you find using the Software Solutions .
8.3 You must not use the Software Solutions 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 Software Solutions 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 Software Solutions.
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 Software Solutions.
12. Hyperlinks
12.1 You must not link to any material using or by means of the Software Solutions that would, if it were made available through the Software Solutions, 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 Software Solutions, 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 Software Solutions, 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 Technology Provider’s availability commitments relating to the Hosted Software Solutions .
1.2 In this Schedule 2, “uptime” means the percentage of time during a given period when the Hosted Software Solutions are available at the gateway between public internet and the network of the hosting Software Solutions Technology Provider for the Hosted Software Solutions.
2. Availability
2.1 The Technology Provider shall use all reasonable endeavours to ensure that the uptime for the Hosted Software Solutions is at least 99.0% during each calendar month.
2.2 The Technology Provider shall be responsible for measuring uptime and shall do so using any reasonable methodology.
3. Software Solution credits
3.1 In respect of each calendar month during which the Hosted Software Solutions uptime is less than the commitment specified in Paragraph 2.1, the Customer shall earn Software Solution credits in accordance with the provisions of this Part 3.
3.2 The Software Solution 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 Technology Provider shall deduct an amount equal to the Software Solution credits due to the Customer under this Part 3 from amounts invoiced in respect of the Fees for the Hosted Software Solutions .
3.4 Software Solution credits shall be the sole remedy of the Customer in relation to any failure by the Technology Provider to meet the availability stated Paragraph 2.1.
3.5 Upon the termination of this Agreement, the Customer’s entitlement to Software Solution credits shall immediately cease, save that Software Solution credits earned by the Customer shall be offset against any amounts invoiced by the Technology Provider in respect of Hosted Software Solutions 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 Technology 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 Technology Provider’s hosting infrastructure Software Solutions Technology Provider, unless such fault or failure constitutes an actionable breach of the contract between the Technology 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 Software Solution levels applicable to the Maintenance Software Solutions.
2. Scheduled Maintenance Software Solutions
2.1 The Technology Provider shall where practicable give to the Customer at least 10 Business Days’ prior written notice of scheduled Maintenance Software Solutions that are likely to affect the availability of the Hosted Software Solutions or are likely to have a material negative impact upon the Hosted Software Solutions, without prejudice to the Technology Provider’s other notice obligations under this Schedule 4.
2.2 The Technology Provider shall provide all scheduled Maintenance Software Solutions outside Business Hours.
3. Updates
3.1 The Technology 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 Technology 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 Technology Provider may acting reasonably decide not to apply any particular third party security Update
(b) the Technology 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 Technology 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 Software Solution levels applicable to the Support Software Solutions.
2. Helpdesk
2.1 The Technology 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 Software Solutions; and the Customer must not use the helpdesk for any other purpose.
2.3 The Technology Provider shall ensure that the helpdesk is accessible by telephone and using the Technology Provider’s web-based ticketing system.
2.4 The Technology 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 Software Solutions 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 Software Solutions shall be categorised as follows:
(a) critical: the Hosted Software Solutions are inoperable or a core function of the Hosted Software Solutions is unavailable;
(b) moderate: a core function of the Hosted Software Solutions is impaired, where the impairment does not constitute a serious issue; or a non-core function of the Hosted Software Solutions is significantly impaired; and
(d) minor: any impairment of the Hosted Software Solutions not falling into the above categories; and any cosmetic issue affecting the Hosted Software Solutions .
3.2 The Technology Provider shall determine, acting reasonably, into which severity category an issue fall.
3.3 The Technology Provider shall use reasonable endeavours to respond to requests for Support Software Solutions 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 Technology Provider shall ensure that its response to a request for Support Software Solutions 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 Technology Provider shall assign a dedicated resource to issues in accordance with the following time periods:
(a) critical: 2 Business Hours;
(c) moderate: as resource available; and
(d) minor: as resource available
4. Provision of Support Software Solutions
4.1 The Support Software Solutions shall be provided remotely.
5. Limitations on Support Software Solutions
5.1 If the total hours spent by the personnel of the Technology Provider performing the Support Software Solutions (specific to this Customer) during any calendar month exceed 20 hours then:
(a) the Technology Provider will cease to have an obligation to provide Support Software Solutions to the Customer during the remainder of that period; and
(b) the Technology Provider may agree to provide Support Software Solutions to the Customer during the remainder of that period, but the provision of those Support Software Solutions will be subject to additional Fees.
5.2 For the avoidance of doubt, hours spent by the Technology 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 Technology Provider shall have no obligation to provide Support Software Solutions in respect of any issue caused by:(a) the improper use of the Hosted Software Solutions by the Customer or(b) any alteration to the Hosted Software Solutions made without the prior consent of the Technology 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 Software Solutions (AWS), InTime (BOS only) (both EU).
5. Security measures for Personal Data
See ‘Engage Security & Business Continuity Policy’ available on request from the Technology Provider.
SCHEDULE 6 (BACK OFFICE SOLUTION (BOS) ONLY)
1. Set Up Software Solutions
Where the BOS is provided to the Customer set-up typically follows the process steps below, however these will vary depending on 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 Software Solutions handover
a. Engage customer Software Solutions introduction
b. Engage customer Software Solutions schedule
6. Soft launch
a. Agree launch schedule
b. Register existing workers
c. Training: Engage & third party
e. Engage billing commences
7. Full launch
a. Communications enabled
b. Welcome emails sent
*if required
8. Technology Provider helpdesk will be available from 9am to 6pm Monday to Friday