YOUR ATTENTION IS PARTICULARLY DRAWN TO THE PROVISIONS OF CLAUSE 13 (LIMITATION OF LIABILITY).
1. Definitions and interpretation
1.1 In these T&Cs, the following definitions apply.
Annual Subscription: a subscription for the Services purchased on a rolling annual basis.
Applicable Law: any laws or regulations, regulatory policies, guidelines or industry codes which apply to the Contract or its subject matter and are in force from time to time.
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: has the meaning set out in clause 2.3 below.
Confidential Information: information in any form that is proprietary or confidential to a party, which includes in the case of the Customer the Customer Data, and in the case of the Supplier includes the Documentation and details of the Portal and the Services.
Contract: a contract for the supply of Services by the Supplier to the Customer under these T&Cs as set out in the Order Confirmation.
Customer: the party purchasing the Services from the Supplier.
Customer Data: the data or materials inputted from time to time by the Customer, its Users and/or the Supplier on the Customer’s behalf for the purpose of using the Portal or facilitating the Customer’s use of the Portal, including the Customer Personal Data.
Customer Materials: all documents, information, data (including the Customer Data), items and materials in any form (whether owned by the Customer or a third party), which are provided by the Customer to the Supplier in connection with the Services.
Customer Personal Data: the personal data set out in clause 10.1 that may be processed via the Portal or otherwise in connection with the Contract.
Data Protection Legislation: (i) prior to 25 May 2018, the Data Protection Act 1998 (as amended, updated or re-enacted from time to time) and from 25 May 2018, Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) (GDPR) and any national laws implementing the GDPR in the territory in which the Services are provided (all as amended, updated or re-enacted from time to time); and (ii) the Privacy and Electronic Communications (EC Directive) Regulations 2003, all other Applicable Law relating to the processing of personal data, privacy, and the protection of data in electronic communications (all as amended, updated or re-enacted from time to time), and any Applicable Law which supersedes, replaces or implements any of the foregoing in any jurisdiction in which the Services are provided.
Documentation: the operating manuals, user and technical documentation and/or other related materials (in any form) relating to the Services and made available by the Supplier from time to time.
Initial Subscription Term: one (1) month in the case of a Monthly Subscription, or one (1) year in the case of an Annual Subscription, as set out in the Order Confirmation.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Monthly Subscription: a subscription for the Services purchased on a rolling monthly basis.
Normal Business Hours: 9am-5pm local UK time, each Business Day.
Order: an order for the supply of Services placed in accordance with clause 2.1.
Order Confirmation: has the meaning set out in clause 2.3
Portal: the Supplier’s online Scalability client portal (as modified by the Supplier from time to time), which allows Customers to build employer branding campaigns, manage social media profiles and organise potential candidates via the ATS and is available via the Website.
Renewal Period: each successive period (after the Initial Subscription Term) of one (1) month in the case of a Monthly Subscription, or one (1) year in the case of an Annual Subscription.
Services: the subscription services to be provided by the Supplier to the Customer under the Contract, as more particularly set out in clause 3.1.
Subscription Fees: the fees payable by the Customer to the Supplier for the Services, as set out in the Order Confirmation and clause 7.
Subscription Package: the level of subscription of the Services that has been purchased by the Customer, as set out in the Order Confirmation.
Subscription Term: the term of the Contract, as set out in clause 11.1.
Supplier: Searchability (UK) Limited trading as Scalability (with registered company number 07977871 and VAT number GB135828204 with its registered office at Booth Street Chambers, Booth Street, Ashton under Lyne, OL6 7LQ.
Support Services: the support services to be provided by the Supplier in respect of the Portal pursuant to clause 3.1(b), as set out further in clause 4.
T&Cs: these Portal Licence Terms.
Third Party Software: any software proprietary to a third party which is integrated with or which interfaces with the Portal.
User: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services, the Portal and the Documentation on behalf of the Customer.
Website: the website (including the Portal) available at https://jobholler.com or such other website as notified by the Supplier to the Customer from time to time.
Year: a period of twelve months commencing on the Commencement Date and each anniversary thereof.
1.2 The terms personal data, data controller, controller, data processor, processor, process, data subject, data protection impact assessment, and personal data breach shall have the applicable meaning set out in the Data Protection Legislation.
1.3 Clause headings are inserted for convenience and will not affect the interpretation of the Contract. References to clauses are to the clauses of these T&Cs.
1.4 Words in the singular will include the plural and vice versa.
1.5 References to a person include an individual, company, firm or partnership and any other legal entity, and that person’s successors and permitted assignees.
1.6 A reference to a statute or statutory provision is a reference to it as amended or re-enacted and includes all subordinate legislation made under that statute or statutory provision.
1.7 Any words following the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
1.8 A reference to writing or written includes email but not fax.
1.9 These T&Cs apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing. The Customer should print or save a copy of these T&Cs for future reference.
2. Order process
2.1 Unless otherwise agreed by the Supplier, Orders must be placed by following the onscreen prompts on the Website. Each Order is an offer by the Customer to buy the Services specified in the Order subject to these T&Cs.
2.2 The order process on the Website allows the Customer to check and amend errors before submitting the Order to the Supplier. The Customer shall be responsible for ensuring it has selected the correct Subscription Package, for checking the Order before submitting it to the Supplier and for ensuring the Order is complete and accurate.
2.3 After the Customer has placed an Order, the Customer will receive an email from the Supplier confirming that the Order has been received, but this does not mean that the Order has been accepted. Acceptance of an Order shall take place when the Supplier sends an email to the Customer expressly accepting the Order (the Order Confirmation), at which point and on which date (the Commencement Date) the Contract between the Supplier and the Customer will come into existence. The Contract will relate only to those Services confirmed in the Order Confirmation. If the Supplier is unable to accept an Order, it will inform the Customer by email, will not process the Order and will refund any Subscription Fees that have been paid in respect of the Order.
2.4 The Services are made available to business customers only.
2.5 The Contract is made in the English language only.
3. Supply of Services
3.1 In consideration for payment of the Subscription Fees and subject to the terms of the Contract, during the Subscription Term the Supplier:
(a) grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Users to use the Portal and the Documentation solely for the Customer’s internal business purposes in order to build the Customer’s online brand and manage the recruitment of the Customer’s own personnel
(b) shall provide the Support Services to the Customer via the Users.
3.2 The rights granted to the Customer under clause 3.1 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
3.3 The Supplier shall provide login details for the Portal to the Customer with the Order Confirmation
3.4 The Supplier shall provide the Services with reasonable care and skill.
3.5 If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act, omission or default of the Customer or any of its representatives, the Supplier shall have the right to suspend performance of its obligations under the Contract (including the performance of the Services) and the Supplier shall not be liable for any costs or losses arising from such suspension or otherwise from such act, omission or default of the Customer and/or its representatives.
3.6 The Contract shall not prevent the Supplier from entering into the same or similar agreements with third parties.
4. Support Services
4.1 The Support Services cover the investigation and resolution of issues or problems with any function or performance of the Portal (Incidents), certain routine maintenance tasks and the provision of updates of the Portal (as and when the Supplier deems necessary)
4.2 The Support Services shall be provided during Normal Business Hours by email only.
4.3 The Support Services shall exclude (and the Supplier shall not be required to provide any Support Services in respect of):
(b) any Incident resulting from the Customer's or any User’s misuse, alteration or combination of the Portal with any hardware or software not identified as compatible by the Supplier;
(c) any Incident which is attributable to any Third Party Software, any hardware or any telecommunications network (excluding any private network of the Supplier); and
(d) the use of a non-current release of the Portal.
4.4 In order to benefit fully from the provision of the Support Services, the Customer must:
(a) promptly report any Incident with the Portal to the Supplier, make reasonable enquiries of the affected Users in respect of the Incident and provide all available information required in order for the Supplier to locate and replicate the Incident;
(b) ensure that all requests for Support Services are transmitted to the Supplier in accordance with the terms of the Contract; and
(c) ensure that its Users are adequately and appropriately trained in respect of the use of the Portal.
4.5 If the Customer requests any Support Services, the Customer shall contact the Supplier’s helpdesk by email at firstname.lastname@example.org or such other email address notified by the Supplier to the Customer from time to time.
4.6 The Supplier shall use reasonable endeavours to provide the Customer with prior notice of any planned maintenance and to carry out such maintenance outside of Normal Business Hours.
5. Availability of the Portal
5.1 The Supplier shall use reasonable endeavours to make the Portal available 90% of the time during Normal Business Hours per month excluding Permitted Downtime (the Availability Target). Permitted Downtime shall be any downtime of the Portal occurring as a result of:
(a) any planned maintenance as described in clause 4;
(b) any outages or disruptions caused in whole or part by:
(i) any act, omission or default by the Customer, any User or by any third party (excluding any subcontractor of the Supplier);
(ii) any fault with or unavailability of any Third Party Software; or
(iii) any Force Majeure Event, or any problems with the network or internet connection, hardware or other devices used by the Customer or any User to gain access to the Portal; and/or
(c) any denial-of-service attacks or distributed denial-of-service attacks or any other malicious attacks or any preventative measures taken to counter any such attack which causes an interruption to the Portal.
5.2 In the event of a failure to achieve the Availability Target, the Customer will be eligible for a service credit as detailed below:
(a) If availability availability measurement falls below 75% during normal business hours this will trigger an entitlement to service credit of 75% of that monthly fee.
5.3 To receive a service credit, the Customer must contact the Supplier by email@example.com within thirty (30) days of the service-affecting event(s). The Customer shall not be entitled to a service credit if it is in breach of any of the terms of the Contract (including without limitation its payment obligations) until the Customer has remedied such breach.
5.4 Notwithstanding any other term of the Contract, the Customer’s sole and exclusive remedy, and the Supplier’s sole liability under the Contract, in respect of any failure to achieve the Availability Target or the performance and/or unavailability of the Portal and/or Services, shall be the Customer’s entitlement to receive service credits in accordance with the terms set out in this clause 5.
6. Customer obligations
6.1 The Customer shall:
(a) co-operate with the Supplier in all matters relating to the Services and provide the Supplier with access to such information, materials, systems and premises as required by the Supplier to perform the Services;
(c) comply with all Applicable Law with respect to its activities under the Contract;
(d) carry out all other Customer responsibilities set out in the Contract in a timely and efficient manner and within any agreed timescales. In the event of any delays in the Customer’s fulfilment of any of its obligations under the Contract, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(e) obtain and shall maintain all necessary licences, consent and permissions necessary for it to perform its obligations under the Contract and use the Services, including without limitation all licences, consents and permissions necessary for the Customer to provide the Customer Materials and those necessary to link the Customer’s account on the Portal to any social media account;
(f) ensure that the Customer Materials are free from viruses and other malicious code and it shall not introduce any viruses or malicious code onto the Supplier’s systems or the Website;
(g) ensure that all login details for the Portal and any other information used as part of the security procedures for the Website are treated as confidential and shall not disclose such information to any person except its authorised personnel;
(h) use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services, the Portal and the Documentation and in the event of any such unauthorised access or use shall promptly notify the Supplier and shall give the Supplier all assistance that it reasonable required to prevent or contain such unauthorised access or use;
(i) ensure that it has all necessary internet and network connections, computer equipment and a suitable web browser required in order to access and use the Portal and complies with all other technical requirements notified to it by the Supplier from time to time;
(j) be solely responsible for all network connections and telecommunications links from its systems to the Supplier's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet; and
(k) ensure that the Customer Materials are correct, complete and up-to-date and shall have sole responsibility for the legality, reliability, integrity, accuracy, completeness and quality of the Customer Materials.
6.2 The Customer shall not:
(a) except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under the Contract:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Website and/or the Documentation in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Website; or
(b) attempt to access, access or assist any third party in accessing, all or any part of the Services the Website and/or the Documentation:
(i) which the Customer is not entitled to access under its Subscription Package; or
(ii) in order to build a product or service which competes with the Services and/or the Website; or
(c) use the Services, the Website or the Documentation to provide services to third parties; or
(d) license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services, the Website and/or the Documentation available to any third party.
6.3 The Customer shall not upload any Customer Materials to the Website during the course of its use of the Services that:
(e) breach any Applicable Law or are fraudulent, or have any unlawful or fraudulent purpose or effect;
(f) facilitate illegal activity;
(g) promote unlawful violence;
(h) are harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(i) depict sexually explicit images;
(j) are discriminatory based on race, gender, colour, religious belief, sexual orientation or disability; or
(k) are otherwise illegal, offensive or causes damage or injury to any person or property,
and the Supplier reserves the right, without liability or prejudice to its other rights, to remove from the Website and/or disable the Customer's access to any Customer Materials that the Supplier (acting in its absolute discretion) considers to breach the provisions of this clause, or any other clause of these T&Cs.
6.4 The Customer shall indemnify the Supplier against all claims, liabilities, losses, costs, proceedings, damages, expenses, fines and penalties suffered or incurred by the Supplier (or any of its partners, employees, officers, consultants, sub-contractors or other personnel) arising out of or in connection with any breach of clause 6.3.
6.5 Any breach of this clause 6 shall constitute a material breach for the purposes of clause 11.2(a).
7. Subscription Fees and payment
7.1 The Customer shall pay the Subscription Fees in accordance with this clause 7.
7.2 Unless otherwise expressly agreed by the Supplier, the Subscription Fees shall be payable in pounds sterling by credit or debit card. We accept the following cards: Visa, Mastercard.
7.3 The Subscription Fees shall be payable annually in advance for Annual Subscriptions and monthly in advance for Monthly Subscriptions.
7.4 The Customer shall, when placing the Order, provide to the Supplier valid, up-to-date and complete credit or debit card details and any other relevant valid, up-to-date and complete contact and billing details. The Customer hereby authorises the Supplier to bill such credit or debit card:
(a) on or after the date the Order is submitted in respect of the Initial Subscription Term;
(b) subject to clause 11.1, on or after the start of each Renewal Period for the Subscription Fees payable in respect of that Renewal Period.
7.5 Unless otherwise expressly agreed by the Supplier, the Subscription Fees for the Initial Subscription Term shall be the prices for the Services set out on the Website at the time the Order is submitted by the Customer and as confirmed in the Order Confirmation.
7.6 The Supplier may increase the Subscription Fees.
7.7 If the Customer wishes to change its Subscription Package after the Commencement Date and the Supplier agrees to such change, the Supplier will modify the Subscription Fees accordingly.
7.8 The Subscription Fees:
(a) are non-cancellable and non-refundable (except as expressly provided otherwise in these T&Cs);
(b) are exclusive of value added tax or any other applicable tax or duty payable upon such sums, which shall be added to the Supplier’s invoice(s) at the prevailing rate from time to time (if applicable); and
(c) shall be paid by the Customer in cleared funds without deduction, set-off, counterclaim or withholding (save as otherwise expressly permitted under these T&Cs or as required by Applicable Law).
7.9 The Customer may pay monies on account via the Website towards payment of the Services or other services to be provided by the Supplier to the Customer (together the Supplier Services). Each one pound sterling (£1) paid by the Customer via the Website will be referred to by the Supplier as one (1) Holler Dollar. The Supplier (acting in its absolute discretion) may from time to time make available to the Customer promotional offers, whereby a promotional reward of additional Holler Dollars will be granted to Customers who pay a minimum amount of monies on account via the Website in a single transaction. For example, a single payment of £1,000 in monies on account via the Website will equate to 1,000 Holler Dollars but may also entitle the Customer to the grant of additional promotional Holler Dollars. Holler Dollars (including promotional Holler Dollars) may be used towards the payment of Supplier Services (but may not be used towards payment of any third party costs) so that one (1) Holler Dollar may be used to pay one pound sterling in fees for Supplier Services. Promotional Holler Dollars may only be used to pay for the Supplier Services and are not refundable or redeemable (for cash or any other value) and are not transferable or assignable. Promotional Holler Dollars will be invalidated if any of the monies paid on account giving rise to their award are refunded to the Customer for any reason. If upon termination of the Contract the Customer has any unused Holler Dollars paid on account (excluding promotional Holler Dollars), then the Supplier shall refund the same to the Customer within a reasonable time following such termination, but any promotional Holler Dollars shall be lost.
7.10 If the Supplier has not received any payment under the Contract by the due date then:
(a) the Supplier may, without liability, suspend the Services and the Supplier shall be under no obligation to provide any of the same while the invoice(s) concerned remain unpaid; and
(b) the Supplier reserves the right to charge the Customer interest on a daily basis in respect of the overdue amount at the rate of four percent (4%) per annum above the base rate from time to time of HSBC UK from the due date until payment is received in full by the Supplier, whether before or after judgment. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount together with all interest, whether before or after judgment. In relation to payments disputed in good faith, interest under this clause is payable only after the dispute is resolved, on sums found or agreed to be due, from the due date until payment.
8. Intellectual Property Rights
8.1 The Customer acknowledges and agrees that the Supplier and its licensors own all Intellectual Property Rights in the Website, the Services and the Documentation. Except as expressly stated herein, the Contract does not grant the Customer any rights to or in any such Intellectual Property Rights, or any other rights whatsoever in respect of the Website, the Services or the Documentation.
8.2 If the Portal becomes or, in the Supplier’s reasonable opinion, is likely to become the subject of any claim that it infringes any Intellectual Property Rights of a third party, the Supplier shall be entitled, at its absolute discretion and without liability, to:
(a) replace all or part of the Portal with functionally equivalent software without any charge to the Customer; and/or
(b) modify the Portal as necessary to avoid such claim, provided that the amended Portal continues to function in substantially the same way; and/or
(c) procure for the Customer a licence from the relevant complainant to continue using the Portal without any additional charge to the Customer; and/or
(d) if after having used reasonable endeavours the Supplier is unable to achieve any of the options at sub-clauses 8.2(a) to 8.2(c), the Supplier may terminate the Contract with immediate effect on written notice to the Customer, in which case, the Supplier shall refund any Subscription Fees paid in advance by the Customer in respect of the unexpired term of the Initial Subscription Term or relevant Renewal Period calculated on a pro rata basis, and the Supplier shall have no further liability in respect of such termination.
8.3 All right, title and interest in and to the Customer Materials (including all Intellectual Property Rights subsisting therin) shall be owned by the Customer and its licensors. The Customer hereby grants a royalty-free, worldwide licence to the Supplier to use the Customer Materials during the Subscription Term for the purpose of providing the Services.
8.4 The Customer agrees that the Supplier may use the Customer’s name and logo in marketing and promotional materials in respect of the Services.
8.5 The Customer warrants that:
(a) it has all the rights in relation to the Customer Materials that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of the Contract; and
(b) the Supplier’s use of the Customer Materials in accordance with the terms of the Contract will not infringe the rights (including the Intellectual Property Rights) of any third party.
8.6 The Customer shall indemnify the Supplier against all claims, liabilities, losses, costs, proceedings, damages, expenses, fines and penalties suffered or incurred by the Supplier (or any of its partners, employees, officers, consultants, sub-contractors or other personnel) as a result of or in connection with any allegation or claim brought against the Supplier for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of, or in connection with, the receipt, use or distribution of the Customer Materials in accordance with the terms of the Contract.
9.1 Each party may be given access to the other party's Confidential Information in connection with the Contract. Each party shall hold the other party's Confidential Information in confidence and not make it available to any third party other than as permitted in clause 9.3 and shall not use it for any purpose other than to exercise its rights and perform its obligations under or in connection with the Contract.
9.2 A party's Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party's lawful possession before the disclosure; or
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
9.3 A party may disclose the other party’s Confidential Information:
(a) to the extent such Confidential Information is required to be disclosed by Applicable Law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 9.3(a) it takes into account the reasonable requests of the other party in relation to the content of such disclosure; and
(b) to its employees, officers, representatives or advisers who need to know such information for the purposes of exercising the party's rights or carrying out its obligations under or in connection with the Contract. Each party shall ensure that its employees, officers, representatives or advisers to whom it discloses the other party's Confidential Information comply with this clause 9.
9.4 The above provisions of this clause 9 shall survive termination of the Contract, however arising.
10. Personal data
10.1 The Portal allows the Customer to insert details of functionality of the Portal that require the Customer to input personal data such as email address, mobile number & social media log-ins. In order to make use of this functionality, personal data relating to employees and candidates must be inputted into the Portal. In order to provide the Services, the Supplier must process this personal data on behalf of the Customer. The types of personal data which the Supplier may process on behalf of the Customer in the provision of the Services will include the following data relating to the Customer’s employees and candidates: Names, addresses, mobile numbers, email addresses, references, salary.
10.2 The duration of the processing of the Customer Personal Data by the Supplier shall be for no longer than is required for the purposes of providing the Services. The Supplier shall not process any additional Customer Personal Data on the Customer’ behalf after the Subscription Term. However, the Customer Personal Data may be retained in records or back-ups which were produced during the Subscription Term and the Supplier may process this Customer Personal Data as required by Applicable Law or, at the Customer’ expense, as requested to do so by the Customer. Except to the extent that the Supplier needs to retain Customer Personal Data for record keeping or legal reasons, it will delete or return to the Customer (subject to clause 12.1(d)) all Customer Personal Data and any copies on termination of the Contract.
10.3 Each party agrees that, in respect of its processing of Customer Personal Data in connection with the provision or receipt of the Services, it will comply with its obligations under the Data Protection Legislation and the provisions of this clause 10.
10.4 The Customer is responsible for complying with Data Protection Legislation in respect of the collection and use of Customer Personal Data for the purposes envisaged by these T&Cs and for ensuring that it has a lawful basis for its intended use or processing of such Customer Personal Data.
10.5 The Customer shall, in its use of the Services, ensure that it processes Customer Personal Data in accordance with the requirements of Data Protection Legislation, and that the Customer’s instructions for the processing of Customer Personal Data by the Supplier shall comply with Data Protection Legislation.
10.6 In respect of the Customer Personal Data processed by the Supplier on behalf of the Customer, the Supplier shall:
(a) only process Customer Personal Data on the Customer’s behalf where and to the extent necessary to provide the Services and otherwise to perform its obligations under the Contract and the Customer’s instructions (provided that such instructions are within the scope of the Supplier’s obligations under the Contract) unless otherwise required by Applicable Law or any regulatory body;
(b) notify the Customer if, in its opinion, an instruction infringes any applicable Data Protection Legislation;
(c) implement appropriate technical and organisational measures, taking into account the nature and purposes of the processing, for the protection of the security of the Customer Personal Data to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the nature of the data to be protected;
(d) ensure that personnel who have access to and/or process Customer Personal Data are obliged to keep the Customer Personal Data confidential;
(e) not transfer the Customer Personal Data outside of the European Economic Area (EEA) without complying with the provisions of the Data Protection Legislation in respect of such transfer, save that where the Customer uses or accesses the Services outside the EEA, it shall be the Customer’s responsibility to ensure that any access to or use of the Customer Personal Data outside of the EEA which results in a transfer of such Customer Personal Data outside of the EEA complies with the provisions of the Data Protection Legislation;
(f) notify the Customer without undue delay if the Supplier becomes aware of any personal data breach or of any request or objection from a data subject pursuant to the Data Protection Legislation relating to the Customer Personal Data;
(g) to the extent that the Customer, in its use of the Services, does not have the ability to address a request from a data subject to exercise the data subject’s rights under the Data Protection Legislation (including requests for access to personal data; rectification or erasure of personal data; restrictions of processing personal data; and portability of personal data) (a Data Subject Request) in respect of the Supplier’s processing of Customer Personal Data, the Supplier shall, upon the Customer’s request, insofar as is possible, provide commercially reasonable assistance, at the Customer’s cost, to facilitate such Data Subject Request;
(h) reasonably assist the Customer, at the Customer’s cost, in ensuring compliance with its obligations under the Data Protection Legislation with respect to consultations with supervisory authorities or regulators;
(i) provide the Customer with reasonable cooperation and assistance, at the Customer’s cost, as may be required to fulfil the Customer’s obligation under the GDPR to carry out a data protection impact assessment related to Customer’s use of the Services, to the extent that the Customer does not otherwise have access to the relevant information, and to the extent that such information is available to the Supplier;
(j) notify the Customer without undue delay after becoming aware of the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to Customer Personal Data transmitted, stored or otherwise processed by the Supplier in respect of the Services, of which the Supplier becomes aware;
(k) maintain records and information regarding its processing activities in respect of the Customer Personal Data to demonstrate its compliance with this Schedule;
(l) allow for audits by the Customer or the Customer’s designated auditor of the Supplier’s systems and procedures relevant to the processing of Customer Personal Data, provided that in the case of any audit, the Customer will:
(i) comply with any reasonable requirements or security restrictions that the Supplier may impose to safeguard its systems, personal data it holds on behalf of other customers and its own confidential or commercially sensitive information and to avoid unreasonable disruption to the Supplier’s business and operations;
(ii) reimburse the Supplier for any time expended by the Supplier for any such audit, at the Supplier’s then current professional services rates, which shall be made available to the Customer on request, which costs shall be reasonable, taking into account the resources expended by the Supplier; and
(iii) before the commencement of any audit, the Customer and the Supplier shall mutually agree on the scope, timing, and duration of the audit.
10.7 The Supplier may use the following types of processors who may process Customer Personal Data in connection with the Services:
(a) providers of cloud storage;
(b) data centres;
(c) website and software developers;
(d) IT support service providers;
The Customer consents to the Supplier appointing the processors set out in clause 10.7 above as a processor of Customer Personal Data under the Contract, and the Supplier shall have in place a written contract with such processors in respect of the processing of Customer Personal Data. The Supplier will notify the Customer of any intended changes of or replacements to any such processors or any additional processors. If the Customer objects to any such change, it shall notify the Data Processor in writing within a period of 30 days of the date of notification of such changes, the Customer may object to any such changes to any such processor on reasonable grounds, in which event either party shall have the right to terminate the Contract with respect only to those Services which cannot be provided by the Supplier without the use of such processor, on giving the other party 30 days notice, without liability to the other party. If the Customer has not objected to any such changes within a period of 30 days of the date of the notification of the changes, the Customer shall be deemed to have accepted such changes
10.8 In addition to the Customer Personal Data which the Supplier processes on the Customer’s behalf, the Supplier may also process personal data in connection with the Contract in its own capacity as a data controller (where the Supplier is to determine the purposes and means of the processing). For example, the Supplier will be the data controller of the contact details of the Customer’s representatives. Except where this clause 10 refers generally to personal data, the provisions of this clause 10 will not apply to such processing, but the Supplier will undertake such processing in accordance with its legal obligations to data subjects under applicable Data Protection Legislation.
11. Term and termination
11.1 The Contract shall commence on the Commencement Date and shall, unless otherwise terminated in accordance with its terms, continue for the Initial Subscription Term. Thereafter, the Contract shall be automatically renewed for successive Renewal Periods, unless:
(a) in respect of a Monthly Subscription, either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or then current Renewal Period (as applicable), in which case the Contract shall terminate upon the expiry of the Initial Subscription Term or then current Renewal Period;
(b) in respect of an Annual Subscription, either party notifies the other party of termination, in writing, at least 30 days before the end of the Initial Subscription Term or then current Renewal Term (as applicable), in which case the Contract shall terminate upon the expiry of the Initial Subscription Term or then current Renewal Period; or
(c) otherwise terminated in accordance with its terms.
11.2 Either party may terminate the Contract immediately without liability upon written notice to the other party if:
(a) the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that material breach within 30 days of the other party being notified in writing of the breach; or
(b) the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being an individual) is deemed either unable to pay its debts or as having no reasonable prospect of so doing in either case within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply, or enters into a composition, compromise or arrangement to reschedule or restructure its debt with or for the benefit of its creditors (except, in the case of a company, for the purpose of a bona fide solvent reconstruction or amalgamation), or it compulsorily or voluntarily enters into liquidation or commences negotiations in respect of the same (except for the purpose of a bona fide solvent reconstruction or amalgamation), or it has an administrator, receiver, liquidator (except for the purpose of a bona fide solvent reconstruction or amalgamation) or manager appointed over the whole, or a substantial part, of its undertaking or assets or any petition or notice is filed or give in respect of the same by any person, or (being an individual) it is the subject of a bankruptcy petition, application or order, or any creditor or encumbrancer attaches or takes possession of or a distress, execution, sequestration or other such process is levied or enforced on or sued against the whole or any part of its assets which is not discharged within 14 days, or it ceases or threatens to cease business or is dissolved, or if any equivalent or similar event occurs or proceeding is taken, with respect to that company in any jurisdiction to which it is subject.
12. Consequences of termination
12.1 On termination of the Contract for any reason:
(a) the Customer shall immediately pay to the Supplier all of the Supplier's outstanding unpaid invoices and interest;
(b) the licence and rights granted to the Customer and its Users under the Contract shall immediately terminate;
(c) the Supplier shall with immediate effect terminate the Customer's and all Users’ access to and use of the Portal, the Documentation and the Services;
(d) the Supplier may without liability destroy or otherwise dispose of any of the Customer Materials in its possession and may (in its discretion) agree to provide to the Customer a copy of the Customer Materials, but the Supplier reserves the right to charge the Customer a reasonable fee for providing any such copy or related assistance
(e) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination shall not be affected or prejudiced; and
(f) any provision of the Contract that expressly or by implication is intended to come into or continue in force on or after termination or expiry of this shall remain in full force and effect.
13. Limitation of liability
13.1 Nothing in the Contract excludes the liability of either party for: (a) death or personal injury caused by its negligence; (b) for fraud or fraudulent misrepresentation or (c) for any other liability that cannot be limited or excluded under Applicable Law. All exclusions and limitations of liability set out in the Contract shall be subject to this clause 13.1.
13.3 The Supplier does not warrant that the Customer’s use of the Services will be uninterrupted or error-free, that the Services, the Website, the Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements and/or that any particular results will be achieved through the provision or use of the same. The Customer assumes sole responsibility for results obtained and conclusions drawn from the use of the Services and the Documentation, and for assessing whether they meet its requirements. Save as expressly provided for in the Contract, the Services and the Documentation are provided “as is” and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by Applicable Law, excluded from the Contract, including the implied conditions, warranties or other terms as to satisfactory quality and fitness for purpose.
13.4 The Supplier is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services, the Website and the Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
13.5 The Supplier shall have no liability for impaired performance or non-performance of the Website arising from a failure of the Customer to comply with any specifications or technical requirements relating to use of the Website notified by the Supplier from time to time.
13.6 The Supplier shall have no liability for losses arising from the configuration of the Portal by the Customer or any User, any errors or omissions in any Customer Materials or any actions taken by the Supplier at the direction of the Customer or a User.
13.7 The Supplier shall not be liable to the Customer under or in connection with the Contract for any: loss of profits; loss of anticipated savings; loss of opportunity; loss of goodwill; loss or corruption of data; or any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
13.8 The Supplier’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall in each Year be limited to the total Subscription Fees paid by the Customer during that Year
14. Force majeure
The Supplier shall have no liability to the Customer if it is prevented from or delayed in performing its obligations under the Contract (by acts, events or omissions beyond its reasonable control, including strikes or other industrial disputes, failure of a utility service or transport network, any failure or interruption of any telecommunications network or Third Party Software, distributed denial of service attacks or any other malicious attacks, act of God, war, riot, malicious damage, compliance with any law, order, rule or regulation, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors (“Force Majeure Event”). The Supplier shall notify the Customer of such Force Majeure Event and its expected duration.
15.1 The Customer may contact the Supplier by telephone at 01244 567 567 or by email at firstname.lastname@example.org.
15.2 Any notice given to a party under or in connection with the Contract shall be in writing and shall be delivered by hand, or by pre-paid first class post or other next Business Day delivery service to the other party, or sent by email. The Supplier’s addresses for delivery of notices shall be its registered office address and the email address set out in clause 15.1, or such other addresses given by the Supplier to the Customer for such purposes. The Customer’s addresses for delivery of notices shall be as set out in the Order.
15.3 A notice delivered by hand will be deemed to have been received when delivered. A notice sent by pre-paid first-class post or recorded delivery will be deemed to have been received on the second Business Day after posting. A notice sent by email will be deemed to be delivered on the next Business Day after transmission (provided that no delivery failure notification is received by the sender).
15.4 This clause 15 does not apply to the service of any proceedings or other documents in any legal action.
16.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Contract.
16.3 Save as expressly permitted otherwise in the Contract, no variation of the Contract shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
16.4 No failure or delay by a party to exercise any right or remedy provided under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.5 If any provision (or part of a provision) of the Contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
16.6 Nothing in the Contract is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way.
16.7 The Contract does not confer any rights on any person or party pursuant to the Contracts (Rights of Third Parties) Act 1999 or otherwise.
16.8 The Contract and any documents referred to in it constitute the whole agreement between the parties and supersede, replace and extinguish any previous arrangement, understanding or agreement between them relating to the subject matter they cover. Each of the parties acknowledges and agrees that in entering into the Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person to the subject matter of the Contract, other than as expressly set out in the Contract.
16.9 Except as expressly stated in the Contract, the rights and remedies provided under the Contract are in addition to and not exclusive of each other and any rights or remedies provided by Applicable Law.
17. Governing law and jurisdiction
17.1 The Contract and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law.
17.2 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with the Contract or its subject matter or formation (including non-contractual disputes or claims).