Basis of the Agreement
1.1.We have developed certain software applications and platforms which we make available to subscribers via the internet for the purpose of managing employees’ annual leave. Please read this Agreement carefully, as it sets out the terms and conditions upon which we make the Services available to you.
1.2.By signing up on our website to use the Software for the Trial Period, you confirm that you accept the terms of this Agreement, at which point, a legally binding contract between you and us will come into force.
1.3.If you are accepting this Agreement on behalf of a corporate entity, you represent that you are authorised to do so. If you are not so authorised, nor deemed in law to have such authority, you assume sole personal liability for the obligations set out in this Agreement. Accordingly, when we say you or your in this Agreement, we refer to the legal or natural person who is the customer under this Agreement by virtue of the preceding sentence of this paragraph. If you do not agree to be bound by the terms of this Agreement, we will not licence the Software to you and you must not use the Service.
1.4.In this Agreement, unless the context otherwise requires, the words in Schedule 1 (Part I) will have the meanings attributed to them in that Schedule. Schedule 1 (Part II) sets out additional interpretations which apply to this Agreement.
Eligibility
To be eligible to access the Software and Services, you must be registering to use it in connection with your trade, business, craft or profession and not as a consumer (as defined in section 2(3) of the Consumer Rights Act 2015). By accepting this Agreement, you warrant and represent to us that you comply with this condition.
Licence of the Software
3.1.Subject to payment by you of the Fees, the provisions set out in clause 5, and other terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable right during the Term, without the right to grant sublicenses, to:
use the Software, Services and Documentation in accordance with this Agreement solely for your internal business operations; and
3.1.2.make the Software, Services and Documentation available to Authorised Users in accordance with this Agreement.
The rights provided under this clause 3 are granted to you only, and will not be considered granted to any of your subsidiaries or holding companies.
Support Services
4.1.We will use Commercially Reasonable Efforts to make the Software available in accordance with this Agreement and to provide Support Services to you during the Term on Business Days and during Normal Business Hours.
4.2.As part of the Support Services, we will:
provide remote Help Desk Support; and
4.2.2.use Commercially Reasonable Efforts to correct all Faults notified by you in accordance with clause 4.4,
on a remote, off-site basis (which may include over the telephone, by email, or by use of remote desktop support software).
4.3.You may request Support Services by calling us on 0191 241 3754 or emailing us at support@theholidaytracker.co.uk or such other number or email address as we may notify to you from time to time for such purposes.
4.4.Each request for Support Services must include all relevant information to enable us to diagnose and resolve the Fault:
your name and full contact details;
4.4.2.a description of the problem and background context, details of any error messages and the start time of the incident.
You will provide us with prompt notice of any Faults, and such output and other data, documents, information, assistance and (subject to compliance with all your security and encryption requirements notified to us in writing) remote access to the Customer Systems as are reasonably necessary to assist us to reproduce operating conditions similar to those present when you detected the relevant Fault and to respond to the relevant request for the Support Services.
4.6.We may reasonably determine that a support service requested by you is an Out-of-scope Service. If we make such determination, we will promptly notify you of the same. You acknowledge that we may but are not obliged to provide Out-of-scope Services.
Operation of the Service
5.1.You shall:
comply with all Applicable Laws with respect to its activities under this Agreement;
5.1.2.provide us with all necessary co-operation in relation to this Agreement (including all necessary access to such information as we may require) in order to provide the Services, including but not limited to Customer Data and security access information;
5.1.3.ensure that each Authorised User keeps a secure password for their use of the Services, and that each Authorised User keeps their password confidential;
5.1.4.carry out all your other responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in your provision of such assistance as agreed by the Parties, we may adjust any agreed timetables as reasonably necessary;
5.1.5.obtain and will maintain all necessary licences, consents, and permissions necessary for us, our contractors and agents to perform our obligations under this Agreement;
5.1.6.ensure that the Customer Systems comply with the relevant specifications provided by us from time to time;
5.1.7.use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify us; and
5.1.8.be solely responsible for procuring and maintaining your network connections and telecommunications links from Customer Systems to our data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by the internet.
You shall not:
do (or omit to do) anything which may put us in breach of Applicable Laws; or
5.2.2.access, store, distribute or transmit any Viruses or any Prohibited Content during the course of its use of the Services, and we reserve the right, without liability or prejudice to our other rights under this Agreement, to disable your access to any material that breaches the provisions of this clause; or
5.2.3.except as may be allowed by any Applicable Law which is incapable of exclusion by agreement between the Parties:
attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means; or
5.2.3.2.attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
access all or any part of the Services and Documentation in order to build a product or service which competes with the Services; or
5.2.5.use the Services and/or Documentation to provide services to third parties; or
5.2.6.subject to clause 15.5, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users; or
5.2.7.attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under clause 3.
Customer Data
6.1.You will own all rights (including the Intellectual Property Rights), title and interest in and to all of the Customer Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data, subject to clause 6.2 below.
6.2.You grant us a worldwide, irrevocable, exclusive, royalty-free licence to create anonymised, aggregated data using the Customer Data and data collected by us through your use of the Software (including the use of any Authorised User) (Derived Data). We will own all rights (including Intellectual Property Rights), title and interest in and to all of the Derived Data.
6.3.We will use reasonable endeavours to ensure that Customer Data which comes into our possession or control in the course of providing the Services is protected in accordance with confidentiality and security obligations under this Agreement. In particular, we will not:
use Customer Data nor reproduce Customer Data in whole or in part in any form except as may be required by this Agreement; nor
6.3.2.disclose Customer Data to any third party or persons not authorised by you to receive it, except with your prior written consent. For the avoidance of doubt, the Approved Sub-processors are deemed to be authorised by you to receive the Customer Data for the purposes set out in Schedule 2 (Data Processing Particulars).
We will (or will procure a third party contractor to) develop the back-up schedule, perform scheduled back-ups, provide routine and emergency data recovery, and manage the archiving process. The back-up schedule will include at least weekly full back-ups and daily incremental back-ups. Back-ups will be retained for two weeks. In the event of any loss or damage to Customer Data, your sole and exclusive remedy will be for us to use Commercially Reasonable Efforts to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by us in accordance with the archiving procedure described above. We will 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 us to perform services related to Customer Data maintenance and back-up).
Data Protection
7.1.In this clause 7 and in Schedule 2:
controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures have the meanings ascribed to them in the Data Protection Legislation; and
7.1.2.sub-processor means a processor engaged by us on your behalf for carrying out specific processing activities in connection with the performance of this Agreement; and
7.1.3.Customer Personal Data means such Customer Data that constitutes personal data.
The Parties agree that:
for the purposes of the Data Protection Legislation, you are the controller and we are the processor in respect of the Customer Personal Data;
7.2.2.the scope, nature and purpose of the processing are as set out in Schedule 2 (Data Processing Particulars);
7.2.3.whilst the Software is currently hosted in UK data centres, the Customer Personal Data may be transferred or stored outside the EEA or the country where you and/or the Authorised Users are located in order to carry out the Services and our other obligations under this Agreement; and
7.2.4.having regard to the state of technological development and the cost of implementing any measures, each Party will ensure that it has in place appropriate technical and organisational measures, to protect against unauthorised or unlawful processing of the Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected.
You warrant to us that you have the legal right to disclose to us all Customer Personal Data that you do in fact disclose to us under or in connection with this Agreement, and that the processing of that Customer Personal Data by us for the purposes of this Agreement will not breach any Data Protection Legislation.
7.4.You will ensure that you have all necessary appropriate notices in place, and (where applicable) that you have obtained all necessary valid consents, to enable lawful transfer of the Customer Personal Data to us for the purposes of this Agreement.
7.5.We will, in relation to any Customer Personal Data processed in connection with the performance by us of our obligations under this Agreement:
process that Customer Personal Data for the purposes set out in Schedule 2 to this Agreement and otherwise in accordance with your lawful, reasonable and documented instructions unless we are required by the Applicable Laws to process the Customer Personal Data in which case we will, to the extent permitted by such Applicable Law, inform you of that legal requirement before processing that Customer Personal Data;
7.5.2.ensure that all personnel who have access to and/or process Customer Personal Data are obliged to keep it confidential;
7.5.3.not transfer any Customer Personal Data outside of the European Economic Area unless such transfer complies with the conditions set out in the Data Protection Legislation in force in the UK at the time of such transfer;
7.5.4.assist you, at your cost, in responding to any request from a data subject and in ensuring compliance with our obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
7.5.5.notify you without undue delay on becoming aware of a personal data breach involving Customer Personal Data;
7.5.6.retain the Customer Data for the duration set out in Schedule 2 (Data Processing Particulars), unless required by Applicable Law to continue to store the data for a longer period; and
7.5.7.maintain complete and accurate records and information to demonstrate our compliance with clause 7.5.
In relation to sub-processors:
you acknowledge and hereby authorise us to engage in connection with the performance of the Agreement those sub-processors set out in Schedule 2 (Data Processing Particulars) to this Agreement (“Approved Sub-processors”), which includes the identities of those sub-processors and their country of location;
7.6.2.we may amend and update the Approved Sub-processors list by providing written notice to you of any proposed new sub-processor. You may notify us in writing within ten Business Days after receipt of our written notice, if you have a reasonable basis for objecting to a new sub-processor. We will not appoint (or disclose any Customer Personal Data to) that proposed sub-processor until reasonable steps have been taken to address the objections raised by you and you have been provided with a reasonable written explanation of the steps taken;
7.6.3.prior to giving any sub-processor access to Customer Personal Data, we will ensure that such sub-processor has entered into a written agreement incorporating terms which are substantially similar to those set out in this clause 7 and the requirements of the Data Protection Legislation.
You acknowledge that we are reliant on you as controller for direction as to the extent to which we are entitled to use and process the Customer Personal Data. Consequently, we will not be liable for any unauthorised or non-compliant loss, access or other processing of Customer Personal Data or any claim brought by a data subject arising from any action or omission by us, to the extent that such action or omission resulted directly from your instructions or your failure to provide instructions. You will indemnify and hold us harmless against all losses, damages, expenses and costs (including court costs and reasonable legal fees) that we suffer or incur as a result of your instructions or your failure to provide instructions.
Fees
8.1.In consideration for the provision of the Services and for the grant of a licence to use the Software and the Documentation, you agree to pay us the Fees in accordance with this clause 8.
8.2.The Fees are due monthly in advance on each Billing Day beginning with the Effective Date, in full, in respect of each Active Employee.
8.3.Unless otherwise agreed by the parties in writing, all amounts payable to us under this Agreement will be payable in Pounds Sterling. All amounts payable by you under this Agreement will be exclusive of any applicable value added tax or other similar tax on sale or supply, which will be paid by you in addition at the prevailing rate on receipt of a valid VAT invoice.
8.4.Where you have provided us with your billing information, including:
details of your Payment Card pursuant to clause 14.2.1, you authorise us to bill such Payment Card for the Fees monthly in advance on each Billing Day beginning on the Effective Date; and where the applicable Fees cannot for any reason be charged to the Payment Card in part or in full, we will invoice you for the unpaid part of the Fees; or
8.4.2.purchase order information pursuant to clause 14.2.2, we will invoice you monthly in advance on each Billing Day beginning on the Effective Date.
Our invoices are due for payment on the date of delivery unless we and you have agreed otherwise in writing.
8.6.If any sum payable under this Agreement is not paid within 30 days after the due date then (without prejudice to our other rights and remedies) we reserve the right to charge interest on such sum from the date when such payment is due until the date of actual payment (after as well as before judgment) at a rate per annum of four per cent (4%) per annum above the base rate of Lloyds Bank from time to time in force, compounded monthly.
8.7.All amounts due under this Agreement from you to us will be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law).
8.8.We may at any time, increase or decrease the Price by giving you not less than two months’ written notice (Change Notice), provided that increases will be no more frequent than once in any 12 months’ period. Unless you notify us in writing before the expiry of the Change Notice that you do not wish to accept the new Price, such new Price will come into effect and substitute the previous Price on the day of the expiry of the Change Notice. Where, before the expiry of the Change Notice, you notify us that you do not wish to accept the new Price the Price will remain unchanged but we reserve the right to terminate the Agreement in accordance with clause 14.3.1.
Intellectual Property Rights
9.1.All right, title and interest in or to the Intellectual Property Rights in Our Materials (including any development, update, improvement, addition, patch or fix to the same) are and will (as between the parties) remain our exclusive property and you will not acquire any right, title or interest in or to the Intellectual Property Rights, other than as set out in clause 3.
9.2.Any goodwill derived from the use by you of Our Materials will accrue to us. We may at any time call for a confirmatory assignment of that goodwill and you will immediately execute it.
Publicity and promotion
10.1.Subject to clause 10.2, you grant us the non-exclusive perpetual right, for our own promotional use to communicate to third parties the fact that we supplied the Services to you, and to reproduce your trade mark for that purpose on our website and in our electronic and hard copy promotional materials.
10.2.You have the right to revoke the licence granted to us under clause 10.1 at any time.
Confidentiality
11.1.Each Party may be given access to Confidential Information from the other Party in order to perform its obligations under this Agreement. A Party’s Confidential Information will not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving Party;
11.1.2.was in the other Party’s lawful possession before the disclosure;
11.1.3.is lawfully disclosed to the receiving Party by a third party without restriction on disclosure; or
11.1.4.is independently developed by the receiving Party, which independent development can be shown by written evidence.
Each Party will 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 (including as provided in clause 10.1).
11.3.A Party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by 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 11.3, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
11.4.Each Party will take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
11.5.Neither Party will be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.6.This clause 11 will survive termination of this Agreement, howsoever arising.
Warranties and indemnity
12.1.You hereby warrant, represent and undertake to us that:
this Agreement is validly executed by your duly authorised representative;
12.1.2.you have, and will maintain throughout the Term, the full capacity and authority and all necessary regulatory licences and approvals to enter into and perform your obligations contained in this Agreement;
12.1.3.neither you nor any of your employees or associated parties will attempt to or permit any third party to reverse engineer, decompile, monitor or in any way replicate the coding, software or functionality of the Software or any other of Our Materials;
12.1.4.the Customer Data will not contain Prohibited Content;
12.1.5.you will comply with all Applicable Laws in relation to your performance of this Agreement;
12.1.6.you will retain the responsibility and accountability for the management, conduct and operation of your business and affairs; deciding your use of, choosing to what extent you wish to rely on, or implement advice or recommendations of the Services; and the delivery, achievement or realisation of any benefits directly or indirectly related to the Services; and
12.1.7.you will retain the responsibility and accountability for the outputs of our assistance with the calculations of holiday entitlement of Employees, and you hereby acknowledge that any such calculations are estimations for you to approve and which you may (in your sole discretion) adjust using the Software.
We hereby warrant, represent and undertake to you that:
we have, and will maintain throughout the Term, the full capacity and authority and all necessary regulatory licences and approvals to enter into and perform our obligations contained in this Agreement; and
12.2.2.we will comply with all Applicable Laws in relation to our performance of this Agreement.
Subject only to clause 4.1, you acknowledge and agree that:
we do not warrant that your use of the Service will be uninterrupted or error-free; or that the Services and/or the information obtained by you through the Service will meet your requirements;
12.3.2.we are 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 you acknowledge that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities;
12.3.3.we are not responsible for the accuracy of our calculations or presentation thereof regarding the holiday entitlement of Employees, and any such calculations, reports, or datasets presented by us to you are for your ultimate review and approval; and
12.3.4.except as expressly and specifically provided in clause 4.1, the software and services provided by us under or in connection with this Agreement (including the Software and the Service) are provided “as is” and as available. We exclude, and you waive, any and all warranties, representations, terms and conditions (to the extent that they may lawfully be so excluded) implied by law or by custom or trade practice in respect of the provision of such services.
You will defend, indemnify and hold us harmless against any claims, actions, proceedings, losses, damages, expenses and costs (including court costs and reasonable legal fees) arising out of or in connection with:
your use of the Services:
12.4.2.any breach by you of the provisions in clauses 2, 5, 7, 11, and/or 12.1.1 - 12.1.5 (inclusive)
12.4.3.any third party claim that the provision or use of the Customer Data pursuant to this Agreement and the performance of your other obligations infringe that third party’s Intellectual Property Rights; and
12.4.4.any loss that arises out of or in connection with a breach or neglect of your obligations pursuant to clause 12.1.6 and/or clause 12.1.7.
Limitation of liability
13.1.You agree and acknowledge that the level of the Fees takes fully into account the limits of our entire financial liability (set out below) for the Services (as applicable) supplied or to be supplied to you, your use of them, and for anything else in connection with this Agreement.
13.2.Nothing in this Agreement will limit or exclude the liability of either Party to the other in respect of death or personal injury caused by negligence, fraud, any other liability which cannot by law be limited or excluded, or the indemnities in clauses 7.7 and 12.4.
13.3.Subject to clause 13.2, neither Party will be liable to the other for any of the following types of loss or damage, even if the Party has been advised of the possibility of such loss or damage: indirect or consequential losses; loss of goodwill or reputation; loss of profits, revenue, contracts or anticipated savings; or loss or damage arising from loss, damage or corruption of data.
13.4.Subject to clause 13.2, each Party’s total aggregate liability to the other arising out of or in respect of this Agreement will not exceed a sum equal to the Fees which we are entitled to receive under this Agreement in respect of the period of 12 months prior to the first event giving rise to the claim (or if the event giving rise to the loss occurs during the first 12 months of the Agreement, the amount paid by you for the Services during that period.
Trial period, term and termination
14.1.Trial Period. This Agreement will commence on the Commencement Date and will either:
remain in force for the duration of, and automatically expire two months after the expiry of the Trial Period; or
14.1.2.if extended pursuant to clause 14.2 below, continue in force until terminated in accordance with clause 14.3 or clause 14.4.
After the Trial Period. If you wish to extend this Agreement beyond the Trial Period:
you must provide us with valid, up-to-date and complete contact and billing information and details of your Payment Card, by entering the same onto the billing page of the Software; or
14.2.2.where another method of payment has been agreed by the Parties, you must provide us with such other billing information and by such method, as the Parties agree.
Termination by either Party. Without affecting any rights that have accrued under this Agreement or any of its rights or remedies, either Party may terminate this Agreement:
for convenience with immediate effect by giving written notice to the other Party;
14.3.2.with immediate effect by giving written notice to the other Party, if the other Party commits a material or persistent breach of its obligations under this Agreement and, if such breach is remediable, fails to remedy such breach within 14 days after being notified to do so;
14.3.3.the other Party suffers an Insolvency Event;
14.3.4.the other Party ceases or threatens to cease to carry on business; or
14.3.5.in accordance with clause 15.
Our right to suspend or terminate. We may suspend or terminate this Agreement in whole or in part, immediately on written notice to you:
you fail to pay any monies due to us under this Agreement, which are not the subject of a valid dispute, within seven Business Days of notice from us of such failure to pay by the due date for payment; or
14.4.2.if you breaches clauses 2, 5, 7, 11 and/or 12.1.
Consequences of termination. On termination of this Agreement for any reason:
all licences granted by us to you under this Agreement will immediately terminate and you shall immediately cease all use of the Services and the Documentation;
14.5.2.you will immediately pay to us all of our outstanding unpaid invoices (together with any accrued interest if such invoices are outside their payment terms) and, in respect of Services supplied but for which no invoice has been submitted, we may submit an invoice, which will be payable immediately on receipt of invoice (without prejudice to any other rights and remedies of Supplier);
14.5.3.subject to clause 14.6, within 14 days of termination of the Agreement, each Party will return all Confidential Information of the other Party in its possessions and will not make or retain any copies of such Confidential Information except as required by Applicable Law or to comply with any applicable legal or accounting record-keeping requirement;
14.5.4.the provisions of paragraph 4 Schedule 2 (Data Processing Particulars) will apply in respect of the retention and deletion of the Customer Personal Data set out in that Schedule; and
14.5.5.the accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, will not be affected or prejudiced.
Data export. For a period of three months following the date of termination of this Agreement, if requested by you, we will provide you with an export of the Customer Data held in the Software in the Excel or CSV file format. Where requested by you, we may (but will not be obliged to) provide you with assistance in respect of any data exports or transfers (that cannot be carried out using the standard export functions) at its rates then in force. Subject to clause 14.5.4, following the expiry of the three months’ period, we will be entitled to destroy or otherwise dispose of any of Customer Materials in our possession. We will have no responsibility to you for any Customer Data destroyed or disposed of in accordance with this clause 14.6.
General
15.1.Force majeure. Neither Party will be liable for any delay in performing any of its obligations hereunder if such delay is caused by circumstances beyond the reasonable control of the Party so delaying (the “Delaying Party”) and the Delaying Party will be entitled to a reasonable extension of time for the performance of such obligations. If the Delaying Party is prevented, by such circumstances beyond its reasonable control, from performance of its obligations for a continuous period in excess of three months and such prevention substantially affects the operation of this Agreement, the other Party will have the right to terminate this Agreement upon giving 30 days’ written notice of such termination to the Delaying Party, in which case neither Party will have any liability to the other except that rights and liabilities accrued prior to such termination will continue to subsist.
15.2.Waiver. No failure or delay by a party to exercise any right or remedy provided under this agreement 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.
15.3.Severance. If any provision (or part of a provision) of this Agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions will 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 will apply with whatever modification is necessary to give effect to the commercial intention of the parties.
15.4.Entire agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
15.5.Assignment. You will not, without our prior written consent, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement. We 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 this Agreement.
15.6.No partnership or agency. Nothing in this Agreement is intended to or will operate to create a partnership between the Parties, or authorise either Party to act as agent for the other, and neither Party will 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).
15.7.Third party rights. 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.
15.8.Notices. Any notice given under this Agreement must be in writing and must be delivered personally or sent by recorded first-class post or by email to the Party to whom it is being given to:
in our case, 15 Burnview Court, Callerton, Newcastle, NE5 1PF or info@theholidaytracker.co.uk; and
15.8.2.in your case, the name and current address or email which we hold for you in the billing page of the Software,
or to such other address or email address, or marked for the attention of such other person, as the applicable Party may from time to time notify to the other by notice given in accordance with this clause 15.8, and
A notice or other communication shall be deemed to have been received: if delivered personally, when left at the address referred to in this clause 15.8; if sent by pre-paid first class post or other next working day delivery service, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, one Business Day after transmission. The provisions of this clause 15.8 shall not apply to the service of any proceedings or other documents in any legal action.
15.9.Governing law. This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of England.
15.10.Jurisdiction. The Parties irrevocably agree that the courts of England have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
Part I: Definitions
In this Agreement, unless the context otherwise requires:
| Active Employees | means those of your employees whose details you register with the Software for the purpose of managing their holiday entitlement and set their status in the Software as “active”; |
| Admin Users | means you, and those of your employees, agents and independent contractors who are authorised by you (by way of selecting administrative permissions for such persons on the Software) to use the Services and the Documentation for your internal business operations; |
| Agreement | means this software as a service agreement including the Schedules; |
| Applicable Law | means any law (including the Data Protection Legislation), enactment, regulation, regulatory policy, guideline, and requirement of any competent authority (including good practice codes) applicable to a Party and/or to any of the activities of a Party; |
| Approved Sub-processors | has the meaning given in clause 7.6.1; |
| Authorised Users | means, together, the Admin Users and the Active Employees; |
| Billing Day |
means:
|
| Business Day | means any day which is not a Saturday, Sunday or public holiday in the UK; |
| Commencement Date | means the date of your acceptance of this Agreement pursuant to clause 1.2; |
| Commercially Reasonable Efforts | means the same degree of priority and diligence with which we meet the support needs of our other similar customers; |
| Confidential Information | means the terms of this Agreement, including any amounts payable hereunder, and, in relation to either Party, all information (whether oral, written or in electronic or any other form) belonging to or relating to that Party, its business affairs or activities (including information concerning methods of design, development, marketing and distribution of the Service and/or the Software, and any trade secrets, intentions or business plans of either Party) which is marked or stated to be confidential or which, due to its character or nature, a reasonable person in a like position and under like circumstances, would treat as and/or reasonably believe to be confidential; |
| Customer Cause |
means any of the following causes:
|
| Customer Data |
means the data (including files):
|
| Customer Systems | means such of your software systems as may interoperate with Software from time to time; |
| Data Protection Legislation |
means all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including, without limitation:
|
| Documentation | means the materials which we may make available to you online via www.theholidaytracker.co.uk or such other web address notified by us to you from time to time, setting out a description of the Services and user instructions for the Services; |
| Effective Date |
means the date on which the first payment of the monthly Fees is due pursuant to clause 8.2, and which:
|
| Fault | means any failure of the Software to operate in all material respects in accordance with the Documentation; |
| Fees | means the subscription fees payable by you to us monthly in advance in accordance with clause 8, and calculated in accordance with the following formula: “number of Active Employees as at the Billing Day x the Price”; |
| Help Desk Support | any support provided by our help desk technicians sufficiently qualified and experienced to identify and resolve most support issues relating to the Software; |
| Insolvency Event |
means that a person:
|
| Intellectual Property Rights | means patents, rights to inventions, rights to use and preserve the confidentiality of information (including know-how and trade secrets), registered designs, copyrights, topography rights, all rights in computer programs, firmware, ‘apps’ and other computer software and data, database rights, rights in designs, rights in get-up, rights affording equivalent protection to copyright, database rights, design rights, trade marks, rights in service marks, logos, domain names, business names, trade names and domain names, and moral rights, in each case howsoever arising and in whatever media, whether registered or unregistered and including all applications (or rights to apply) for and to be granted, renewals or extensions of, and rights to claim priority from, such rights, which subsist or will subsist now or in the future in any part of the world; |
| Normal Business Hours | 9.00 am to 5.00 pm local UK time, each Business Day; |
| Our Materials | means any and all materials, software, content, information, data or systems of any kind whatsoever created, produced or provided by us or our licensors, including the Software, any graphical, animated and other material provided by us for use in connection with the Services, and any materials relating to the Services; |
| Out-of-scope Services |
means any support services in relation to the Software which we may agree to provide to you:
|
| Payment Card | the debit or credit card the details of which you enter onto the billing page of the Software in accordance with clause 14.2.1 for the purpose of payment of the Fees by you in accordance with clause 8.4; |
| Price |
means the subscription price per Active Employee per calendar month (or part thereof):
|
| Prohibited Content |
content or materials which:
|
| Services | the Software subscription services and the Support Services provided by us to you under this Agreement via theholidaytracker.co.uk or any other website which we may notify to you from time to time, as more particularly described in the Documentation; |
| Software | means The Holiday Tracker software which enables us to offer the Service to you in accordance with this Agreement; |
| Solution |
means either of the following outcomes:
|
| Support Services | means the maintenance of the then-current version or release of the Software, including Help Desk Support but excluding any Out-of-scope Services; |
| Term | means the period commencing on the Commencement Date and ending on the expiry or termination of this Agreement under clause 14.1.1, 14.3 or 14.4, as the case may be; |
| Trial Period | means the trial period of seven days commencing on the Commencement Date, or such longer period as the Parties may agree in writing; |
| 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, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise 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; |
| we, us, and our | means Burns Software Development Ltd, a company incorporated under the laws of England and Wales under company number 10049064, whose registered office is located at 15 Burnview Court, Callerton, Newcastle, United Kingdom, NE5 1PF; and |
| you and yours | has the meaning given in clause 1.3. |
Part II: Interpretation
In this Agreement, unless the context otherwise requires:
references to clauses and Schedules are to clauses of, and schedules to this Agreement;
(b)references to the singular include the plural and vice versa and references to one gender include all genders;
(c)references to a "person" include any company, partnership or unincorporated association (whether or not having separate legal personality) and references to a "company" include any company, corporation or other body corporate (wherever and however incorporated or established). The expression "subsidiary" has the meaning given in the Companies Act 2006;
(d)references to a statute or statutory provision include (i) that statute or statutory provision as modified, re-enacted or consolidated from time to time (whether before or after the date of this Agreement), (ii) any past statute or statutory provision (as modified, re-enacted or consolidated from time to time) which that statute or statutory provision has directly or indirectly replaced, and (iii) any subordinate legislation made from time to time under that statute or statutory provision;
(e)the words including, include, in particular or any similar expression are to be construed as if followed by the words without limitation;
(f)references to “writing” or “written” include emails (but not faxes), provided that if a notice is required to be given under this Agreement is served by email it must also be confirmed by post;
(g)The Schedules form part of the Agreement and will have the same force and effect as if set out in the body of this Agreement and any reference to this Agreement will include the Schedules;
(h)The headings in this Agreement are included for convenience only and will be ignored in interpreting this Agreement; and
(i)Any obligations on a Party not to do something includes an obligation not to allow that thing to be done.
Scope of the processing
The processing under clause 7 of this Agreement applies to Customer Personal Data, as defined in the Agreement.
2.Nature of the processing
The Software enables you to:
record, monitor and analyse holiday and absence data of your employees;
(b)record other employment related information (as described in paragraph 5 of this Schedule 2); and
(c)record notes and upload documents into the Software in relation to your employees.
Purpose of processing
The Customer Personal Data will be processed to:
enable you to use our Software to record, monitor and analyse holiday and absence data of your employees; and
(b)enable us to provide the Support Services to you; and
(c)enable us to analyse usage of the Software during the Trial Period.
Duration of the processing
You may choose to delete details of an employee and all data stored against them from our Software at any time during the Term.
We will cease the processing of the Customer Personal Data for the purposes set out in this Schedule 2 within three months of the termination or expiry of this Agreement, and as soon as possible thereafter at your choice, either return, or delete such data from our systems, unless the Applicable Laws require longer storage of such Customer Personal Data.
If you do not inform us of your choice to require the return or deletion of such Customer Personal Data within three months of the termination or expiry of this Agreement, then you will be deemed to have chosen the deletion of the Customer Personal Data.
You acknowledge that:
we may continue to process information derived from the Customer Personal Data for our own purposes in anonymised, aggregated reports during the Term and following termination of the Agreement; and
(b)if, for the purposes of the Data Protection Legislation, you are considered to be an individual, we may process your personal data, as a controller, in accordance with our privacy notice published on our website.
Categories of data subjects and types of personal data:
| Categories of data subjects | Category of data | Types of data |
|---|---|---|
| Employees |
Employee basic record Details which can be recorded on The Holiday Tracker by Admin Users for each employee. |
For example:
|
| Employees |
Absence record Details of holidays or sickness days taken by an employee |
For example: employee; record creation date; absence type; start date; half day; end date; half day; number of days; number of hours; approvals; and notes. |
| Employees and Admin Users |
Audit log Details of action taken by or to an employee within The Holiday Tracker. |
For example: date of action; performed by; performed to; action; and details. |
| Employees and Admin Users |
Usage Data and Cookies Details of the usage of our Software using a third party digital experience insights platform. |
For example:
|
| Employees | Related Documents | Any documents uploaded onto The Holiday Tracker by Admin Users against an employee. |
| Admin Users | Details of registered Admin Users | For example: forenames; surname; job title; work telephone; work mobile; and work email address. |
| Admin Users | Details provided to us in connection with our Support Services | Any personal information which might be provided to us by Admin Users requesting our Support Services, including but not limited to name and contact details of the Admin User requesting support. |
Approved sub-processors
| Sub-processor | Location | Purpose of processing |
|---|---|---|
| Google LLC | USA (subscribes to the EU-US Privacy Shield) | Hosting email exchange between us and the Authorised Users |
| Hotjar Ltd | Ireland | Providing digital experience insights for use of the website and Software during the Trial Period using behavioural analytics software |
| Microsoft Ireland Operations Limited | UK data centres | Providing hosting services for the Software and data processed through the Software |
| SendGrid, Inc. | USA (subscribes to the EU-US Privacy Shield | Delivering automated transactional emails to Authorised Users (such as holiday request notifications) |
|
Stripe Payments Europe, Ltd Stripe, Inc |
Ireland USA (subscribes to the EU-US Privacy Shield) |
Processing credit and debit card payments |
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