PARTIES

1  —  HR-Fundamentals Limited, a company incorporated in England and Wales (registration number 04615583) having its registered office at 20 Market Place, Kingston-upon-Thames, Surrey KT1 1JP (the “Provider”); and

2  —  The Company or Organisation for which an individual on behalf of a Company or Organisation registers for an account using the Platform (the “Customer”).

BACKGROUND

The Provider operates the Platform and provides the Support Services, and the Customer wishes to be granted access to the Platform and to receive the Support Services, on the terms of this Agreement.

AGREEMENT

1. Definitions and interpretation

1.1  —  In this Agreement:

1.2  —  In this Agreement, a reference to a statute or statutory provision includes a reference to:

1.3  —  The Clause headings do not affect the interpretation of this Agreement.

1.4  —  The ejusdem generis rule is not intended to be used in the interpretation of this Agreement.

2. Term

2.1  —  This Agreement will come into force on the Effective Date and will continue in force for the Minimum Term and indefinitely thereafter, unless terminated in accordance with Clause 13.

3. The Platform

3.1  —  The Provider will make available the Platform to the Customer by setting up an account for the Customer on the Platform, and providing to the Customer login details for that account as soon as practical to do so.

3.2  —  Subject to the limitations set out in Clause 3.3 and the prohibitions set out in Clause 3.4, the Provider hereby grants to the Customer a non-exclusive licence to use the Platform for the Permitted Purpose in accordance with the Documentation during the Term.

3.3  —  The licence granted by the Provider to the Customer under Clause 3.2 is subject to the following limitations:

3.4  —  Except to the extent mandated by applicable law or expressly permitted in this Agreement, the licence granted by the Provider to the Customer under this Clause 3 is subject to the following prohibitions:

3.5  —  For the avoidance of doubt, the Customer has no right to access the object code or source code of the Platform, either during or after the Term.

3.6  —  All Intellectual Property Rights in the Platform shall, as between the parties, be the exclusive property of the Provider.

3.7  —  The Customer shall use all reasonable endeavours to ensure that no unauthorised person will or could access the Platform using the Customer’s account.

3.8  —  The Customer must not use the Platform in any way that causes, or may cause, damage to the Platform or impairment of the availability or accessibility of the Platform, or any of the areas of, or services on, the Platform.

3.9  —  The Customer must not use the Platform:

4. Support Services and Upgrades

4.1  —  During the Term the Provider may provide the Support Services to the Customer, and may apply Upgrades to the Platform, in accordance with the service level agreement set out in Schedule [2].

4.2  —  The Provider may sub-contract the provision of any of the Support Services without obtaining the consent of the Customer.

5. Customisations

5.1  —  From time to time the Provider and the Customer may agree that the Provider will customise the Platform in accordance with a specification agreed between the parties.

5.2  —  From the date when a Customisation is first made available to the Customer, the Customisation shall form part of the Platform under the Agreement, and accordingly from that date the Customer’s rights to use the Customisation shall be governed by Clause 3.

5.3  —  The Customer acknowledges that the Provider may make any Customisation available to its other Customers following the making available of that Customisation to the Customer.

5.4  —  All Intellectual Property Rights in the Customisations shall, as between the parties, be the exclusive property of the Provider.

5.5  —  The Customer will be responsible for procuring any third party co-operation reasonably required by the Provider to enable the Provider to fulfil its obligations under this Clause 5.

6. Customer Materials

6.1  —  The Customer grants to the Provider a non-exclusive licence to store, copy and otherwise use the Customer Materials on the Platform for the purposes of operating the Platform, providing the Services, fulfilling its other obligations under this Agreement, and exercising its rights under this Agreement.

6.2  —  Subject to Clause 6.1, all Intellectual Property Rights in the Customer Materials will remain, as between the parties, the property of the Customer.

6.3  —  The Customer warrants and represents to the Provider that the Customer Materials, and their use by the Provider in accordance with the terms of this Agreement, will not:

6.4  —  Where the Provider reasonably suspects that there has been a breach by the Customer of the provisions of this Clause 6, the Provider may:

6.5  —  Any breach by the Customer of this Clause 6 will be deemed to be a material breach of this Agreement for the purposes of Clause 13.

7. Charges

7.1  —  The Provider will issue invoices for the Charges to the Customer in accordance with the provisions of Schedule [3].

7.2  —  The Customer will pay the Charges to the Provider within 30 days of the date of issue of an invoice issued in accordance with Clause 7.1.

7.3  —  All Charges stated in or in relation to this Agreement are stated exclusive of VAT, unless the context requires otherwise. VAT will be payable by the Customer to the Provider in addition to the principal amounts.

7.4  —  Charges must be paid by debit card or credit card using the Platform.

7.5  —  If the Customer does not pay any amount properly due to the Provider under or in connection with this Agreement, the Provider may:

7.6  —  The Provider may vary the Charges payable under Paragraphs 3 and 4 of Schedule [3] at any time by giving to the Customer notice of the variation.

7.7  —  The Provider may suspend access to the Platform and the provision of the Services if any amounts due to be paid by the Customer to the Provider under this Agreement are overdue.

8. Warranties

8.1  —  The Customer warrants and represents to the Provider that it has the legal right and authority to enter into and perform its obligations under this Agreement.

8.2  —  The Provider warrants and represents to the Customer:

8.3  —  The Customer acknowledges that:

8.4  —  All of the parties’ warranties and representations in respect of the subject matter of this Agreement are expressly set out in the terms of 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.

9. Indemnities

9.1  —  The Customer will indemnify and will keep indemnified the Provider against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Provider and arising as a result of any breach by the Customer of Clause 6.3 or a Customer Indemnity Event.

9.2  —  The Provider will:

9.3  —  The Provider will indemnify and will keep indemnified the Customer against all liabilities, damages, losses, costs and expenses (including legal expenses and amounts paid upon legal advice in settlement of any disputes) suffered or incurred by the Customer and arising as a result of any breach by the Provider of Clause 8.2(e) or a Provider Indemnity Event.

9.4  —  The Customer will:

10. Limitations and exclusions of liability

10.1  —  Nothing in the Agreement will:

10.2  —  The limitations and exclusions of liability set out in this Clause 10 and elsewhere in the Agreement:

10.3  —  Neither party will be liable in respect of any loss of profits, income, revenue, use, production or anticipated savings.

10.4  —  Neither party will be liable for any loss of business, contracts or commercial opportunities.

10.5  —  Neither party will be liable for any loss of or damage to goodwill or reputation.

10.6  —  Neither party will be liable in respect of any loss or corruption of any data, database or software.

10.7  —  Neither party will be liable in respect of any special, indirect or consequential loss or damage.

10.8  —  Neither party will be liable for any losses arising out of a Force Majeure Event.

10.9  —  Neither party’s liability in relation to any event or series of related events will exceed the greater of:

10.10  —  Neither party’s aggregate liability under the Agreement and any collateral contracts will exceed the greater of:

11. Data protection

11.1  —  The Customer warrants that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.

11.2  —  The Provider warrants that:

12. Confidentiality and publicity

12.1  —  The Provider will use reasonable endeavours to:

12.2  —  The Customer will use reasonable endeavours to:

12.3  —  Confidential Information of a party may be disclosed by the other party to that other party’s officers and employees, provided that the recipient is bound in writing to maintain the confidentiality of the Confidential Information disclosed.

12.4  —  The obligations set out in this Clause 12 shall not apply to:

12.5  —  Neither party will make any public disclosure relating to this Agreement (including press releases, public announcements and marketing materials) without the prior written consent of the other party.

13. Termination

13.1  —  Either party may terminate this Agreement immediately by giving written notice to the other party if the other party:

13.2  —  Either party may terminate this Agreement immediately by giving written notice to the other party if:

13.3  —  The Customer may terminate this Agreement by giving at least 12 months’ written notice of termination to the Provider. In such circumstances the Provider is not obliged to reimburse part, full or pro-rata charges already paid by a Customer.

13.4  —  If the Provider stops or makes a good faith decision to stop operating the Platform generally, then the Provider may terminate this Agreement by giving at least 30 days’ written notice of termination to the Customer. In such circumstances the Provider is not obliged to reimburse part, full or pro-rata charges already paid by a Customer.

13.5  —  The Provider may terminate this Agreement by giving written notice of termination to the Customer in the event that the parties cannot reasonably agree on any Change request made by the Customer. In such circumstances the Provider is not obliged to reimburse part, full or pro-rata charges already paid by a Customer.

13.6  —  The Provider may terminate the Agreement immediately by giving written notice of termination to the Customer where the Customer fails to pay to the Provider any amount due to be paid under the Agreement by the due date. In such circumstances the Provider is not obliged to reimburse part, full or pro-rata element of charges already paid by a Customer.

14. Effects of termination

14.1  —  Upon termination of this Agreement, all the provisions of this Agreement will cease to have effect, save that the following provisions of this Agreement will survive and continue to have effect (in accordance with their terms or otherwise indefinitely): Clauses 1, 7.5, 9, 10, 12.1 to 12.4, 14 and 18.

14.2  —  Termination of this Agreement will not affect either party’s accrued liabilities and rights as at the date of termination.

14.3  —  Subject to Clause 14.5, within 90 days following the termination of the Agreement, the Provider may irrevocably delete from the Platform all Customer Confidential Information.

14.4  —  Subject to Clause 14.5, within 90 days following the termination of this Agreement, the Customer will:

14.5  —  A party may retain any document (including any electronic document) containing the Confidential Information of the other party after the termination of this Agreement if:

15. Notices

15.1  —  Any notice given under this Agreement must be in writing (whether or not described as “written notice” in this Agreement) and must be delivered personally, sent by recorded signed-for post, or sent by email, for the attention of the relevant person, and to the relevant address or email address given below (or as notified by one party to the other in accordance with this Clause).

15.2  —  A notice will be deemed to have been received at the relevant time set out below (or where such time is not within Business Hours, when Business Hours next begin after the relevant time set out below):

16. Force Majeure Event

16.1  —  Where a Force Majeure Event gives rise to a failure or delay in either party performing its obligations under this Agreement (other than obligations to make payment), those obligations will be suspended for the duration of the Force Majeure Event.

16.2  —  A party who becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in performing its obligations under this Agreement, will:

16.3  —  The affected party will take reasonable steps to mitigate the effects of the Force Majeure Event.

17. Modification to this Agreement

17.1  —  The Provider reserves the right to modify this Agreement at any time. Such modified Agreement will be made available:

17.2  —  Changes to this Agreement shall be deemed effective 7 days after being made available unless the Customer. Use of the Platform after any such changes will constitute the Customer’s agreement to the changes.

17.3  —  No modification to this Agreement requested by the Customer will be effective without express written, signed and dated consent from a Director of the Provider.

18. General

18.1  —  No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.

18.2  —  If a Clause of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other Clauses of this Agreement will continue in effect. If any unlawful and/or unenforceable Clause would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the Clause will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant Clause will be deemed to be deleted).

18.3  —  Nothing in this Agreement will constitute a partnership, agency relationship or contract of employment between the parties.

18.4  —  This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.

18.5  —  Each party hereby agrees that the other party may freely assign any or all of its contractual rights and/or obligations under this Agreement to any Affiliate of the assigning party or any successor to all or a substantial part of the business of the assigning party from time to time. Save as expressly provided in this Clause or elsewhere in this Agreement, neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise dispose of or deal in this Agreement or any contractual rights or obligations under this Agreement.

18.6  —  Neither party will, without the other party’s prior written consent, either during the term of this Agreement or within 6 months after the date of effective termination of this Agreement, engage, employ or otherwise solicit for employment any employee, agent or contractor of the other party who has been involved in the performance of this Agreement.

18.7  —  Each party agrees to execute (and arrange for the execution of) any documents and do (and arrange for the doing of) any things reasonably within that party’s power, which are necessary to enable the parties to exercise their rights and fulfil their obligations under this Agreement.

18.8  —  This Agreement is made for the benefit of the parties, and is not intended to benefit any third party or be enforceable by any third party. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to this Agreement are not subject to the consent of any third party.

18.9  —  Subject to Clause 10.1:

18.10  —  This Agreement will be governed by and construed in accordance with the laws of England and Wales; and the courts of England will have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.

The parties have indicated their acceptance of this Agreement by registering with the Platform.

Schedule 1 - Miscellaneous

Minimum Term

The Minimum Term shall be the period of 30 days commencing date of first use.

Platform Specification

Waypoint HR web based people administration software.

Licensing

The Customer may add additional people records by using the Platform. Where the Customer adds additional people records, the Customer will be liable for additional Charges under Schedule [3].

Schedule 2 - Service Level Agreement

1. Introduction

1.1  —  In this Schedule:

1.2  —  References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

2. Support Services

2.1  —  The Provider may make available for additional charge, during Business Hours, email technical support and assistance for the purposes of:

2.2  —  The Customer must make all requests for Support Services by contacting the Provider Representative by email.

3. Response and resolution times

3.1  —  The Provider will:

3.2  —  All Support Services will be provided remotely unless expressly agreed otherwise by the Provider.

4. Limits on Support Services

4.1  —  The Provider has no obligation to provide Support Services to the Customer.

5. Upgrades

5.1  —  The Customer acknowledges that from time to time during the Term the Provider may apply Upgrades to the Platform, and that such Upgrades may result in changes to the appearance and/or functionality of the Platform.

5.2  —  The Provider will give to the Customer reasonable prior written notice of the application of any significant Upgrade to the Platform. Such notice shall normally include details of the specific changes to the functionality of the Platform resulting from the application of the Upgrade.

6. Uptime commitment

6.1  —  The Provider shall use all reasonable endeavours to ensure that the Platform is available for use by the Customer, but is not responsible for lack of availability.

7. Back-up and restoration

7.1  —  The Provider will not be responsible for back-ups of the Customer Materials stored on the Platform and will not be responsible for data loss.

8. Scheduled maintenance

8.1  —  The Provider may suspend access to the Platform in order to carry out scheduled maintenance.

8.2  —  The Provider will not give notice of any scheduled maintenance.

Schedule 3 - Charges

1. Introduction

1.1  —  References in this Schedule to Paragraphs are to the paragraphs of this Schedule, unless otherwise stated.

1.2  —  The Charges under the Agreement will consist of the following elements:

2. Access Charges

2.1  —  The Charges in respect of access to and use of the Platform shall be made up of two elements, a Fixed Charges and a Variable Charge.

2.2  —  Any Fixed Charge will be shown within the Platform to the Customer, which shall be invoiced monthly by the Provider.

2.3  —  The Variable Charge will be shown within the Platform to the Customer, which shall be invoiced monthly by the Provider.

3. Other Charges

3.1  —  In addition to the Charges detailed in Paragraph 2 above, the Provider will invoice in respect of, and the Customer shall pay to the Provider:

3.2  —  Where other Charges are to be calculated by reference to an hourly or daily rate, the following rates shall apply as at the date of this Agreement: Daily rate £1,200 plus vat.

Schedule 4 - Acceptable Use Policy

1. This Policy

This Acceptable Use Policy (the “Policy”) sets out the rules governing the use of our web services available via https://waypointhr.com (the “Service”) and any content that you may submit to the Service (“Content”).

By using the Service, you agree to the rules set out in this Policy.

2. General restrictions

You must not use the Service in any way that causes, or may cause, damage to the Service or impairment of the availability or accessibility of the Service, or any of the areas of, or services on, the Service.

You must not use the Service:

3. Unlawful and illegal material

You must not use the Service to store, host, copy, distribute, display, publish, transmit or send Content that is illegal or unlawful, or that will or may infringe a third party’s legal rights, or that could give rise to legal action whether against you or us or a third party (in each case in any jurisdiction and under any applicable law).

Content (and its publication on the Service) must not:

You must not submit any Content that is or has ever been the subject of any threatened or actual legal proceedings or other similar complaint.

4. Data mining

You must not conduct any systematic or automated data collection activities (including without limitation scraping, data mining, data extraction and data harvesting) on or in relation to the Service without our express written consent.

5. Graphic material

Content must not depict violence in an explicit, graphic or gratuitous manner.

Content must not be pornographic or sexually explicit, or consist of or include explicit, graphic or gratuitous material of a sexual nature.

6. Harmful software

You must not use the Service to promote or distribute any viruses, Trojans, worms, root kits, spyware, adware or any other harmful software, programs, routines, applications or technologies.

You must not use the Service to promote or distribute any software, programs, routines, applications or technologies that will or may negatively affect the performance of a computer or introduce significant security risks to a computer.

7. Factual accuracy

Content must not be untrue, false, inaccurate or misleading.

Statements of fact contained in the Content must be true; and statements of opinion contained on the Content must be truly held and where possible based upon facts that are true.

8. Negligent advice

Content must not consist of or contain any instructions, advice or other information that may be acted upon and could, if acted upon, cause:

9. Marketing and spam

You must not use the Service for any purposes related to marketing, advertising, promotion, or the supply and/or sale of goods and/or services.

Content must not constitute spam.

You must not use the Service to transmit or send unsolicited commercial communications.

You must not use the Service to market, distribute or post chain letters, ponzi schemes, pyramid schemes, matrix programs, “get rich quick” schemes or similar schemes, programs or materials.

10. Gambling

You must not use the Service for any purpose related to gambling, gaming, betting, lotteries, sweepstakes, prize competitions or any gambling-related activity.

11. Professional advice

You must not use the Service to provide any legal, financial, investment, taxation, accountancy, medical or other professional advice or advisory services.

12. Etiquette

Content must be appropriate, civil, tasteful and accord with generally accepted standards of etiquette and behaviour on the internet.

Content must not be offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory.

Content should not cause annoyance, inconvenience or needless anxiety.

Do not flame or conduct flame wars on the Service (“flaming” is the sending hostile messages intended to insult, in particular where the message is directed at a particular person or group of people).

Do not troll on the Service (“trolling” is the practice of deliberately upsetting or offending other users).

You must not flood the Service with Content focusing upon one particular subject or subject area, whether alone or in coordination with other users.

Content must not duplicate existing Content on the Service.

You must submit Content to the appropriate part of the Service.

Do not unnecessarily submit textual content in CAPITAL LETTERS.

You should use appropriate and informative titles for all Content.

You must at all times be courteous and polite to other Service users.

13. Hyperlinks

You must not link to any website or web page containing material that would, were it posted on the Service, breach the preceding terms of this Policy above.

14. Breaches of this Policy

We reserve the right to edit or remove any Content in our sole discretion for any reason, without notice or explanation.

Without prejudice to this general right and our other legal rights, if you breach this Policy in any way, or if we reasonably suspect that you have breached this Policy in any way, we may:

15. Banned users

Where we suspend or prohibit your access to the Service or a part of the Service, you must not take any action to circumvent such suspension or prohibition (including without limitation using a different account).

16. Monitoring

Notwithstanding the provisions of this Policy, we do not actively monitor Content.

17. Report abuse

If you become aware of any material on the Service that contravenes this Policy, please notify us by email.