SOFTWARE AS A SERVICE AGREEMENT
This Agreement consists of the terms which are set out below together with the terms and conditions contained in the Schedule and the Appendices which are attached.
NOW IT IS HEREBY AGREED as follows:
Words and expressions which are defined shall have the meaning set out in the relevant part of the Schedule.
The Company shall provide the following Services to the Customer in accordance with the terms and conditions set out in the corresponding parts of the Schedule.
INTERPRETATIONS AND DEFINITIONS
In these Conditions references to:-
In these terms and conditions, the following words and expressions shall, unless the context otherwise requires, have the following meanings:-
“Additional Users” means the users subscribing to the Services in addition to the Number of Users specified in the Order Form.
“Authorised Users” means those employees and contractors of the Customer who are authorised by the Customer to use the Services and the Documentation.
“Bespoke Software” means the computer software, applications or programs developed by the Company for the Customer pursuant to this Contract;
“Commencement Date” means the commencement date stated in the Order Form.
“Customer Contact” means the contact named in the Order Form who is authorised to enter into this agreement on behalf of the Customer.
“Conditions” means these terms and conditions and includes any special terms and conditions agreed in writing between the Customer and the Company;
"Confidential Information" means all confidential information and data received by the Customer or the Company relating to the other party, including but not limited to business methods, business plans, trade secrets, other party commercial and financial data, employee lists, product lists, supplier and customer lists, databases and other information;
“Contract” means the contract for the supply of services comprising these Conditions, and any other documents specifically referred to in writing by the Company and the Customer as forming part of the contract;
“Charges” means any charges for the provision of the Services set out in the first page of this Contract or as otherwise agreed between the Company and the Customer from time to time;
“Customer” means the customer as described on the front page of this Contract;
“Deliverables” means all documents and materials developed or provided by the Company in relation to the Bespoke Software;
“Documentation” means any training and documentation. For example the includes description of the Services; training and user instructions for the Services.
“Intellectual Property Rights" means patents, registered trademarks, registered designs (and any applications for any of the foregoing) unregistered trademarks, copyright, design rights, database rights, unregistered design rights, know how, confidential information and any other intellectual or industrial property rights existing anywhere in the world, including any domain name registrations;
“Invoice” means any invoice raised by Engage Your People Limited to the Customer for the provision of the Services.
“Licence Agreement” shall mean the licence or terms under which the Customer is permitted to use the software;
“Number of Users” means the number of users of the Service as set out in the Order Form;
“Parties” mean both Engage Your People Limited and the Customer.
“Payment Terms” mean the terms set out in the order form;
“Order” means the Customer’s instruction, e-mail or payment for the Services;
“Services" means the design and development of the bespoke software solutions provided by the Company on behalf of the Customer via https://engageyourpeople.com or any additional website as directed to the customer by Engage Your People Limited ;
“Software” means the online software applications provided by Engage Your People Limited as part of the Services;
“Special Conditions” means any special conditions as set out in the Order Form.
“Subscription Fees” means the subscription fees payable by the Customer to Engage Your People Limited for the User Subscriptions, as set out in the Order Form.
“Subscription Term” has the meaning given in the Order Form.
“Support Services” Engage Your People Limited’s policy for providing support in relation to the Services made available at https://engageyourpeople.com or such other website address as may be notified to the Customer from time to time.
“Third Party Software” means the object code form of the computer software, applications or programs used or to be used on the Equipment or which the Company shall make available to the Customer during the course of providing the Services, including any improvements of the same developed from time to time, where such software has been created by a Third Party Licensor pursuant to the terms of a License Agreement between the Third Party Licensor and the Customer;
“Virus” means any, thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, equipment, network or any other service or device; prevent, impair or adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
"Working Days" means any day except Saturdays, Sundays and public holidays in the United Kingdom.
“User Subscriptions” means the user subscriptions purchased by the Customer pursuant to Condition 2 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this agreement.
Subject to the Customer purchasing the User Subscriptions in accordance with this document, the restrictions set out in this section, the Customer providing valid email addresses for the Authorised Users, and the other terms and conditions of this agreement, Engage Your People Limited hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
Additional user subscriptions
The Customer may, from time to time during any Subscription Term, purchase Additional Users and Engage Your People Limited shall grant access to the Services to such Additional Users in accordance with the provisions of this agreement.
If the Customer wishes to purchase Additional Users, the Customer contact Engage Your People Limited via the website (https://engageyourpeople.com) and request Additional Users. This request will be evaluated and responded to within twenty-four hours; such approval not to be unreasonably withheld.
Once approved, Customer shall pay to Engage Your People Limited the relevant fees for such Additional Users within the Payment Terms of the Invoice, which unless otherwise agreed between the parties, shall be the Subscription Fee agreed in the most recent Order Form agreed between the parties.
Engage Your People Limited shall, during the Subscription Term, provide the Services and make available any Documentation to the Customer on and subject to the terms of this agreement.
Engage Your People Limited shall use commercially reasonable endeavours to make the Services available 24 hours a day.
1.2. Unless otherwise agreed between the Parties, Engage Your People Limited shall invoice the Customer on or after the Commencement Date for the Subscription Fees payable in respect of the Subscription Term and the Customer shall pay each invoice within the Payment Terms.
1.3. If Engage Your People Limited has not received payment within 10 days after the Invoice due date, and without prejudice to any other rights and remedies of Engage Your People Limited :
1.3.1 Engage Your People Limited may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and Engage Your People Limited shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
1.3.2. Interest shall accrue on a daily basis on such due amounts at an annual rate equal to 5% over the then current base lending rate of Engage Your People Limited bankers in the UK from time to time, commencing on the Engage Your People Limited Invoice due date and continuing until fully paid, whether before or after judgment.
1.4. All amounts and fees stated or referred to in this agreement:
1.4.1. Shall be payable in pounds sterling unless otherwise specified in the Order Form;
1.4.2. Are, subject to Condition 10, non-cancellable and non-refundable;
1.4.3. Are exclusive of value added tax, which shall be added to Engage Your People Limited’s invoice(s) at the appropriate rate.
1.5. Engage Your People Limited shall be entitled to vary the Subscription Fees and the fees payable in respect of the Additional User Subscriptions purchased pursuant to Condition 1.2 upon 30 days’ prior notice to the Customer and the Order Form shall be deemed to have been amended accordingly.
2.1. No neglect, forbearance, indulgence of, or giving of extra time by the Company in obtaining payment or enforcing these Conditions strictly or at all shall in any way affect the liability of the Customer. 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.
3.1. Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
4.1. If any provision of these Conditions shall be held to be invalid, illegal or unenforceable, then both parties shall be relieved of all rights and obligations arising under such provision but only to the extent that such provision is invalid, illegal or unenforceable and such provision shall be modified to the extent necessary to make it valid, legal and enforceable whilst preserving the intent of the parties. All other provisions of this Contract shall be regarded as fully valid and enforceable unless otherwise proved.
5.1. This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede 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 this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
6.1. Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
7.1. Engage Your People Limited undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care
7.2. The undertaking at Condition 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to Engage Your People Limited ’s instructions, or modification or alteration of the Services by any party other than Engage Your People Limited . If the Services do not conform with the foregoing undertaking, Engage Your People Limited will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Condition 7.1.
7.3. Notwithstanding the foregoing, Engage Your People Limited :
7.3.1. Does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Software, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
7.3.2. 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 and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.4. This agreement shall not prevent Engage Your People Limited from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
7.5 Engage Your People Limited warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
8.1. For the avoidance of doubt the Company shall not be obliged to provide the Software until the Order Form and payment has been signed by both Customer and Engage Your People Limited.
8.2. The Company's obligation to provide the Services is subject to any applicable Licence Agreements being in force.
8.3. Where the Company has not provided the core, underlying licenses or applications to a Customer, the Company will not be liable for any faults, bugs or incidents relating to such core software, and any time and resources that have to be applied by the Company to issues found to be or related to, such core software, will be out of the scope of the Services being provided and subject to separate charges.
8.4. The Company will not be responsible for any delay in the provision of the Services or failure to achieve targets set by the Customer arising out of
8.4.1. as a consequence of any breach by the Customer of its obligations under these Conditions.
8.4.2. any non acceptance, delay in or non-payment by the Customer of any charges due under the Contract or as a result of an extension offered.
9.1. The Customer shall:
9.1.1. ensure that any applicable Licence Agreements are valid and in force and permit the Company and its sub-contractors to use, install, and, where necessary, modify, adapt or alter the Third Party Software for the purpose of developing the Bespoke Software;
9.1.2. not carry out any unauthorised alteration, adaptation or modification of the Software ;
9.3. The Customer agrees to provide full responses in the shortest timescales to requests for information and assistance and acknowledges that the Company will not be responsible for problems arising as a result of failure to do so.
9.4. Provide all necessary access to such information as may be required by Engage Your People Limited; in order to provide the Software, including but not limited to Customer Data, security access information and configuration services;
9.5. Ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
9.6. Ensure that its network and systems comply with the relevant specifications provided by Engage Your People Limited from time to time.
10.1. In consideration for providing the Services to the Customer, the Customer shall pay the Company the charges set out on the Order Form together with any cancellation or additional fees that might arise due to breach of the Conditions by the Customer.
10.2. Any fees and charges arising under this Contract are exclusive of VAT and where appropriate the Customer must pay VAT to the Company in addition to such fee or charge.
10.3. Payment will be scheduled monthly or annually.
10.4. In the event that there is any dispute concerning a payment due from the Customer to the Company it shall be dealt with in accordance with Conditions 13, 14, 15 and 19 except that the meeting shall where practical be between the Chief Executive Officers of each of the Customer and the Company.
11.1. The Customer acknowledges that any and all Intellectual Property Rights in the Tools are owned by and shall remain at all times the exclusive property of the Company. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
11.2. If any third party Intellectual Property Rights are used, the Company shall obtain all necessary consents, approvals and licences for the use of the same, and advise the Customer of any conditions or terms or costs attached to the same.
11.3. If any part of the Services supplied by the Company to the Customer infringes or is alleged to have infringed the Intellectual Property Rights of any third party, the Company will , as soon as is reasonably practicable (unless such material has been obtained from the Customer) replace the infringing part or code (as the case may be) at its own expense with non-infringing material.
11.4. All Intellectual Property Rights arising from or relating to the software shall remain the exclusive property of Engage Your People Limited.
11.5. Engage Your People Limited confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
12.1. Each party shall treat the Confidential Information as secret and confidential and, other than as set out in Conditions 12.2 and 12.3, not use, copy or disclose the Confidential Information or any part of the Confidential Information except insofar as may be necessary for the proper fulfilment of its obligation under these Conditions, subject always to the provisions of Condition 12.3; whilst making reasonable steps to ensur Confidential Information is not disclosed.
12.2. The obligations contained in Condition 12.1 shall not apply to information or data which:-
12.2.1. is in or enters the public domain otherwise than by breach of these Conditions;
12.2.2. is known to the recipient prior to its receipt and is at its free disposal;
12.2.3. is received from an independent third party having the right to disclose the same; or
12.2.4. is required to be disclosed by law to any court or other competent authority.
12.3. The Company may summarise its affiliation with the customer for purposes of publicity in various media, unless otherwise agreed in writing with the Customer.
12.4. The obligations contained in this Condition 12 shall survive any termination of this Contract for a period of five (5) years.
12.5. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
12.6. Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.7. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12.8. Engage Your People Limited shall follow its archiving procedures for Customer Data. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for Engage Your People Limited to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by Engage Your People Limited. Engage Your People Limited shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by Engage Your People Limited to perform services related to Customer Data maintenance and back-up).
12.9 If Engage Your People Limited processes any personal data on the Customer’s behalf when performing its obligations under this agreement, the parties record their intention that the Customer shall be the data controller and Engage Your People Limited shall be a data processor and in any such case:
12.9.1. the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer and the Authorised Users are located in order to carry out the Services and Engage Your People Limited’s other obligations under this agreement only with prior notice;
12.9.2. the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to Engage Your People Limited so that Engage Your People Limited may lawfully use, process and transfer the personal data in accordance with this agreement on the Customer’s behalf;
12.9.3. each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage
13.1. The Services and the Documentation are provided to the Customer on an “as is” basis.
13.2. The express obligations of the Company are, to the fullest extent permitted by law, in lieu of and to the exclusion of any warranty, conditions, term, undertaking or representation of any kind whether express, implied, statutory or otherwise relating to the software or anything supplied or the Services provided (in this Condition 13 referred together as “a warranty”) including (without limitation) a warranty as to the condition, quality performance or fitness for purpose of any OF the Services or any aspect of them.
13.3. Subject to Condition 13.5 the Company will not be liable for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused whether arising under contract, delict (including negligence) or otherwise including (without limitation) loss of production, loss of or corruption to data, loss of profits, or of contracts, loss of operation time, loss of goodwill or anticipated savings even if the Company has been advised of their possibility.
13.4. Nothing in these Conditions excludes the liability of the Company:
13.4.1. for death or personal injury caused by the Company’s negligence or that of its employees or properly appointed sub-contractors; or
13.4.2. for fraud or fraudulent misrepresentation.
14.1. The Customer shall indemnify and hold the Company harmless in respect of any claim, action, proceedings, losses, damages, expenses and costs arising out of or in connection with the Company’s use of any Third Party Software in the course of providing the Services provided that:-
14.1.1. the Customer is given reasonably prompt notice of such claims;
14.1.2. the Company gives reasonable co-operation to the Customer in defending such claims; and
14.1.3. the Customer is given sole authority to defend such claims.
14.2. The Customer shall defend the Company, its officers, directors, employees and sub-contractors against any claim that the Software infringes any Intellectual Property Rights of a Third Party, and shall indemnify the Company for any amounts awarded against the Company in judgment or settlement of such claims, provided that:
14.2.1. the Customer is given reasonably prompt notice of such claims;
14.2.2. the Company gives reasonable co-operation to the Customer in defending such claims; and
14.2.3. the Customer is given sole authority to defend such claims.
14.3. The Customer shall indemnify and hold the Company harmless in respect of any claim, action, proceedings, losses or damages, expenses and costs arising out of or in connection with any breach by the Customer of this Contract.
14.4. The Customer shall reimburse the reasonable costs incurred by the Company in complying with the provision of Conditions 14.1.2 and 14.2.2 above.
15.1. The Company reserves the right to suspend provision of the Services in the event that any invoice is overdue.
15.2. Subject to Condition 15.3, if the Customer gives notice in writing cancelling an Order not less than ten days before the Services are due to commence then no charge shall be made by the Company.
15.3. Upon receipt of a valid notice of cancellation the Company shall in its discretion terminate the provisions of the Services.
16.1. If a dispute arises between the Company and the Customer the parties agree first to use their respective best endeavours in good faith to settle the dispute by mediation before having recourse to litigation or some other dispute resolution procedure. A party claiming that a dispute has arisen must give written notice to the other party specifying the nature of the dispute.
16.2. On receipt of such notice the parties must within seven (7) days of receipt convene a meeting between their respective Chief Executive Officers (or nominated deputy) and the other relevant members of management to attempt to resolve the dispute. If the dispute is not resolved within seven (7) days or within such further period as the parties agree, then the dispute is to be referred to a mediation provider appointed by the parties and in default of agreement by the President for the time being of the Law Society of England and Wales.
17.1. This Contract and associated Working Documents contain the whole agreement between the parties in respect of the subject matter of this Contract and each of the parties acknowledges that in entering into this Contract it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to the agreement or not) relating to the subject matter of this Contract other than as expressly set out in this Contract.
18.1. All notices which are required to be given shall be in writing and shall be sent to the address of the recipient set out on the Order or such other address as the recipient may designate by notice given in accordance with this Condition. Any such notice may be delivered personally by first class pre-paid letter or e-mail and will be deemed to have been received:
18.1.1. by hand delivery – at the time of delivery;
18.1.2. by first class post – 48 hours after the date of mailing;
18.1.3. by email - immediately on transmission within the Service Hours (the hours of any Saturday Sunday or Public Holiday shall be ignored) provided a confirmatory copy is sent by first class prepaid post or by hand by the end of the next business day.
19.1. This Contract shall commence on the date of the first payment and placement of order from an authorised signatory, accepting the related proposal , and shall, subject to provisions on termination contained in Condition 19.2 below continue until the date of Acceptance.
19.2. Each party shall be entitled forthwith to terminate this Contract by written notice to the other if:
19.2.1. the other party commits any material breach of any of the provisions of this Contract and, in the case of a breach which is capable of remedy fails to remedy the same within 30 days after receipt of a written notice giving full particulars of the breach and requiring it to be remedied; or
19.2.2. an encumbrancer takes possession or a receiver, administrative receiver or a judicial factor is appointed over any of the property or assets of the other party; or
19.2.3. the other party becomes insolvent or apparently insolvent or makes any voluntary arrangement with its creditors generally, or becomes subject to an administration order; or
19.2.4. the other party goes into liquidation (except for the purposes of amalgamation or reconstruction and in such manner that the company resulting therefrom is solvent and effectively agrees to be bound by or assume the obligations imposed on the other party under this Contract); or
19.2.5. anything analogous to any of the foregoing under the laws of any jurisdiction outwith England and Wales occurs in relation to the other party; or
19.2.6. the other party ceases, or threatens to cease, to carry on business.
19.3. For the purpose of Condition 19.2.1 a breach shall be considered capable of remedy if the party in breach can comply with the provision in question in all respects other than as to the time of performance (provided that time of performance is not of the essence).
19.4. Termination of the Contract for whatever reason shall not affect the accrued rights of the parties under these Conditions arising out of this Contract as at the date of termination and, in particular but without limitation, the right to recover damages from the other; nor shall termination affect the continuance in force of any provision contained within this Contract which is expressly or by implication intended to continue in force on or after such termination. Conditions 11 (Intellectual Property Rights), 12 (Confidentiality), 13 (Limitation of Liability) and 14 (Customer Indemnity) shall survive termination and/or expiry of the Contract and remain in full force and effect.
19.5. On termination of this agreement for any reason all licences granted under this agreement shall immediately terminate;
19.5.1. Each party shall make no further use of the Software and Documentation and (and all copies of them) belonging to the other party;
19.5.2. Engage Your People Limited may in its discretion destroy or otherwise dispose of any of the Customer Data in its possession.
20.1. Neither the Company nor the Customer will be liable to the other for any delay in performance or failure to perform its obligations under these Conditions (other than a payment obligation) due to any course outside its reasonable control. Such delay or failure will not constitute a breach of this Contract and the time for performance of the affected obligation will be extended by such period as is reasonable. These include: failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood or storm.
22.1. This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.