1.1 In this Agreement, except to the extent expressly provided otherwise:
"Account" means an account enabling a person to access and use the Hosted Services, including any of the following:
(a) administrator accounts;
(b) Manager accounts;
(c) Approver accounts;
(d) Employee accounts;
"Agreement" means this agreement including any Schedules, and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or public holiday in England, UK;
"Business Hours" means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
"Charges" means the charges incurred by the Customer to use the Hosted Services as detailed on the espressohr.co.uk web site and chargeable as per section 10 of this agreement.
"Customer Confidential Information" means:
(a) any information disclosed by the Customer to the Provider at any time before the termination of this Agreement (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by the Provider to be confidential; and
(b) the Customer Data;
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement, but excluding data generated by the system for the customer’s instance identification, with respect to which the Provider is a data controller;
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data including, while it is in force and applicable to Customer Personal Data, the General Data Protection Regulation (Regulation (EU) 2016/679) and the UK Data Protection Act 2018;
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;
"Effective Date" means the date of execution of this Agreement. Which unless otherwise stated in writing, will be the date of registration for the Hosted Services;
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"Hosted Services" means the Espresso HR web application available at app.espressohr.co.uk or any other URL endpoint to the application offered by Espresso HR, which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;
"Hosted Services Defect" means a defect, error or bug in the Platform having an adverse effect OR a material adverse effect on the appearance, operation, functionality or performance of the Hosted Services, but excluding any defect, error or bug caused by or arising as a result of:
(a) any act or omission of the Customer or any person authorised by the Customer to use the Platform or Hosted Services;
(b) any use of the Platform or Hosted Services contrary to the Documentation, whether by the Customer or by any person authorised by the Customer;
(c) a failure of the Customer to perform or observe any of its obligations in this Agreement; and/or
(d) an incompatibility between the Platform or Hosted Services and any other system, network, application, program, web browser, hardware or software not specified as compatible with the Hosted Services.
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
"Maintenance Services" means the general maintenance of the Platform and Hosted Services, and the application of Updates and Upgrades;
"Personal Data" has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;
"Schedule" means any schedule attached to the main body of this Agreement;
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;
"Term" means the term of this Agreement, commencing in accordance with Clause 3.1 and ending in accordance with Clause 3.2;
"Update" means a hotfix, patch or minor version update to any Platform software; and
"Upgrade" means a major version upgrade of any Platform software.
2.1 This document was created using a template from SEQ Legal (https://seqlegal.com).
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force indefinitely OR until payment is unable to be taken, upon which this Agreement shall terminate automatically, subject to termination in accordance with Clause 18 or any other provision of this Agreement.
4.1 The Provider hereby grants to the Customer a licence to use the Hosted Services by means of a Supported Web Browser for the internal business purposes of the Customer in accordance with the Documentation during the Term.
4.2 The licence granted by the Provider to the Customer under Clause 4.2 is subject to the following limitations:
(a) the Hosted Services may only be used by the employees of the Customer;
(b) the Hosted Services may only be used by the named user of a given account, the Customer may add or remove designated named user accounts as needed by the Customer.
(c) registration for the Hosted Services must only be performed by persons authorised by their organisation to represent their organisation in this manner.
(d) the Hosted Services are intended for use by organisations based in the UK.
4.3 Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the Hosted Services;
(b) the Customer must not permit any unauthorised person to access or use the Hosted Services;
(c) the Customer must not use the Hosted Services to provide services to third parties;
(d) the Customer must not republish or redistribute any content or material from the Hosted Services or any other content provided by the Provider;
(e) the Customer must not make any alteration to the Platform;
(f) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or Hosted Services;
(g) the Customer may not create any databases by downloading any or all of the content from the Hosted Services.
4.4 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Hosted Services using an Account.
4.5 The Provider shall use reasonable endeavours to maintain the availability of the Hosted Services to the Customer but does not guarantee 100% availability.
4.6 The Customer must ensure that all persons using the Hosted Services with the authority of the Customer or by means of an Account comply with these terms.
4.7 The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
4.8 The Customer must not use the Hosted Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
4.9 For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
5.1 The Provider reserves the right to modify, enhance, correct or make any other changes to the Hosted Service and its features (including their billing status or the pricing plan they fall under) at any time, without notice.
5.2 In the event of planned major downtime lasting more than 12 hours, the Provider will endeavor, but not guarantee, to provide at least 3 days notice to the Customer.
6.1 The Provider shall provide the Support Services to the Customer during the Term.
6.2 The Provider shall make available to the Customer a helpdesk in accordance with the provisions of this main body of this Agreement.
6.3 The Provider shall provide the Support Services with reasonable skill and care.
6.4 The Customer may use the helpdesk for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the helpdesk for any other purpose.
6.5 The Provider shall respond within a reasonable timeframe to all requests for Support Services made by the Customer through the helpdesk.
6.6 The Provider may suspend the provision of the Support Services, without prior notice, if any amount due to be paid by the Customer to the Provider under this Agreement is overdue.
7.1 The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement. The Customer also grants to the Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, subject to any express restrictions elsewhere in this Agreement.
7.2 The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
7.3 The Provider shall create a back-up copy of the Customer Data on a regular basis, shall ensure that each such copy is sufficient to enable the Provider to restore the Hosted Services to the state they were in at the time the back-up was taken, and shall retain and securely store each such copy for a minimum period of 30 days.
8.1 Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
9.1 A free trial period of 14 days is available to evaluate and test the Hosted Service free of charge to ensure it is appropriate for the Customer. This trial period commences at the Effective date.
9.2 The free trial period may be extended at the sole discretion of the Provider.
9.3 Once the end of the trial period is reached, the Customer must provide payment details to continue to use the Hosted Service. The chosen payment term (e.g. monthly) will begin when initial payment is provided for the first payment term.
9.4 A pricing plan must be chosen by the Customer upon registration for the Hosted Service. This plan determines the features available to the Customer.
9.5 The exact amount payable by the Customer for each payment term is determined by the chosen pricing plan and the number of active employee accounts created in the Hosted Service. The minimum number of chargeable employee accounts is 10, although the Customer may choose to utilise fewer than 10 accounts.
9.6 At the end of each payment term the Provider will attempt to charge the selected payment method chosen by the Customer to renew the subscription. Renewed subscriptions are for the same term and volume as the previous term, unless otherwise requested by the Customer during the payment term.
9.7 If payment cannot be taken at the end of the payment term, the Provider reserves the right without prior notice, to reduce the functionality available in the Hosted Service, or to prevent the Customer from accessing the Hosted Service entirely until such time as a payment can be successfully taken. The Provider also reserves the right to delete any data associated with the Customer at any time.
9.8 The Provider reserves the right to change prices, or the features available within each pricing plan, at any time, without prior notice.
9.9 Where pricing information is displayed, all prices are in pounds sterling and are inclusive of VAT unless stated otherwise.
10.1 The Customer may change their chosen pricing plan at any time by contacting the Provider.
10.2 The Customer can increase the number of active employee accounts by creating new accounts within the Hosted Service. Any change to the amount payable will become effective immediately.
10.3 Where a change to the chosen pricing plan or number of active employees results in an increase in the amount payable to the Provider, the Customer will be charged the increased amount at the next subscription renewal date.
10.4 Where a change to the chosen pricing plan or number of active employees results in a decrease in the amount payable for each payment term, no refund will be given. Instead the new pricing plan will not become effective until the next renewal date, when the full amount for the new plan and number of employees will be charged.
10.5 The Customer may choose to cancel their subscription at any time, without prior notice. Any remaining subscription already paid will not be refunded, but the Hosted Service will be available for use until the next renewal date. After this date the Hosted Service will be unavailable unless the subscription is reactivated by the Customer.
10.6 After cancellation, the Provider reserves the right to delete any data related to the Customer’s account at any time, without prior notice.
11.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer's prior written consent.
(c) use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer Confidential Information;
11.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer Confidential Information to the Provider's employees who have a need to access the Customer Confidential Information for the performance of their work with respect to this Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
11.3 This Clause 12 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider; or
(c) is obtained by the Provider from a third party in circumstances where the Provider has no reason to believe that there has been a breach of an obligation of confidentiality.
11.4 The restrictions in this Clause 12 do not apply to the extent that any Customer Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
11.5 The provisions of this Clause 12 shall continue in force indefinitely following the termination of this Agreement.
12.1 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data.
12.2 The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
12.4 The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
12.5 Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.
12.6 The Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
12.7 The Provider and the Customer shall each implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data.
12.8 As at the Effective Date, the Provider is hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data.
12.9 The Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer's obligation to respond to requests exercising a data subject's rights under the Data Protection Laws.
12.10 The Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws. The Provider shall report any Personal Data breach relating to the Customer Personal Data to the Customer within 7 days following the Provider becoming aware of the breach.
12.11 The Provider shall, at the choice of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
13.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise and experience to perform its obligations under this Agreement.
13.2 The Provider warrants to the Customer that:
(a) the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification;
(b) the Platform will incorporate security features reflecting the requirements of good industry practice
13.3 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not breach any laws, statutes or regulations applicable under English law.
13.4 The Provider warrants to the Customer that the Hosted Services, when used by the Customer in accordance with this Agreement, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
13.5 The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
13.6 All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
14.1 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
14.2 The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure.
14.3 The Customer acknowledges that the Provider will not provide any legal, financial, HR, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
15.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
15.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in this Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
15.3 Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
15.4 Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
15.5 Neither party shall be liable to the other party in respect of any loss of revenue or income.
15.6 Neither party shall be liable to the other party in respect of any loss of use or production.
15.7 Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
15.8 Neither party shall be liable to the other party in respect of any loss or corruption of any data, database or software.
15.9 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
16.1 Either party may terminate this Agreement by giving to the other party written notice of termination.
16.2 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of this Agreement.
16.3 Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party;
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under this Agreement.
17.1 Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, unless otherwise specified in the provision.
17.2 Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
17.3 The Provider does not accept any responsibility or liability for any loss of service or data in the effect of termination.
18.1 Any notice from one party to the other party under this Agreement must be given by one of the following methods:
(a) email, or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received 2 Business Days following posting providing that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
18.2 The Provider's contact details for notices under this Clause 20 can be found on the espressohr.co.uk web site.
18.3 The addressee and contact details set out in Clause 20.2 may be updated from time to time by a party giving written notice of the update to the other party in accordance with this Clause 20.
19.1 Subject to any express restrictions elsewhere in this Agreement, the Provider may subcontract any of its obligations under this Agreement.
19.2 The Provider shall remain responsible to the Customer for the performance of any subcontracted obligations.
19.3 Notwithstanding the provisions of this Clause 21 but subject to any other provision of this Agreement, the Customer acknowledges and agrees that the Provider may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of elements of the Platform.
20.1 No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
20.2 If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
20.3 Neither party may without the prior written consent of the other party assign, transfer, charge, license or otherwise deal in or dispose of any contractual rights or obligations under this Agreement.
20.4 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.
20.5 Subject to Clause 16.1, this Agreement shall constitute the entire agreement between the parties in relation to the subject matter of this Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
20.6 This Agreement shall be governed by and construed in accordance with English law.
20.7 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
21.1 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
21.2 The Clause headings do not affect the interpretation of this Agreement.
21.3 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
22.1 The Provider may, from time to time, make changes to these terms.
22.2 In the event of substantial changes to the terms, the Provider will provide 7 days notice of such changes to the Customer.