Software as a service subscription agreement

This Software as a Service Subscription Agreement (“Agreement”) is dated [DATE].


Parties


(1) Candidly Limited incorporated and registered in England and Wales with company number 12696436 whose registered office is at 14b Thane Villas, London, England, N7 7PA (“Supplier”); and


(2) [FULL CUSTOMER NAME] incorporated and registered in England and Wales with company number [NUMBER] whose registered office is at [REGISTERED OFFICE ADDRESS] (“Customer”).


BACKGROUND

(A) The Supplier has developed certain software applications and platforms which it makes available to subscribers via the internet on a pay-per-use basis for the purpose of recruitment business (applicant tracking system – ATS).


(B) The Customer wishes to use the Supplier’s service in its business operations.


(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for the Supplier’s service subject to the terms and conditions of this Agreement.


Agreed Terms


1. Interpretation


1.1 The definitions and rules of interpretation in this clause apply in this Agreement.


Authorised Users:

those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation, as further described in Clause 2.2(d).

Business Day:

a day other than a Saturday, Sunday, or public holiday in England when banks in London are open for business

Confidential Information:

information of commercial value, in whatever form or medium, disclosed by the party to the other party, including commercial or technical know-how, technology, information pertaining to business operations and strategies, information pertaining to customers, pricing and marketing, and information that is propriety or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 11.5 or Clause 11.6.

Controller, processor, data subject, personal data breach, processing, and appropriate technical and organisational measures:

as defined in the Data Protection Legislation.

Customer Data:

the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer's use of the Services.

Data Discloser:

the Customer (the party that discloses Shared Personal Data to the Supplier).

Data Protection Legislation:

the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications) and the guidance and codes of practice issued by the relevant data protection or supervisory authority and applicable to a party.

Documentation:

the document made available to the Customer by the Supplier online via [INSERT WEB ADDRESS] or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.

Effective Date:

the date of this Agreement.

Initial Subscription Term:

the initial term of this agreement as set out in Schedule 2.

Intellectual Property Rights:

all patents, copyrights, design rights, trade marks, service marks, trade secrets, know-how, database rights and other rights in the nature of intellectual property rights (whether registered or not) and all applications for the same which may now or in the future subsist anywhere in the world, including the right to sue for and recover damages for past infringements.

Normal Business Hours:

the hours 9am to 6pm GMT, Monday to Friday, except English Bank Holidays.

Permitted Recipients:

the parties to this Agreement, the employees of each party, any third parties engaged to perform obligations in connection with this Agreement.

Renewal Period:

the period described in Clause 14.1.

Services:

the subscription services provided by the Supplier to the Customer under this Agreement via the Candidly Platform, as more particularly described in the Documentation.

Shared Personal Data:

the personal data to be shared between the parties under Clause 5.  Shared Personal Data shall include Customer Data and the following categories of information relevant to the data subject in accordance with the Supplier’s platform privacy notice: identity data; contact data; professional data; eligibility data; technical data; profile data; usage data; and marketing and communications data.

Software:

the online software applications provided by the Supplier as part of the Services.

Subscription Fees:

the subscription fees payable by the Customer to the Supplier for the User Subscriptions, as set out in paragraph 1 of Schedule 1.

Subscription Term:

has the meaning given in Clause 14.1 (being the Initial Subscription Term together with any subsequent Renewal Periods).

Support Services Policy:

the Supplier’s policy for providing support in relation to the Services as made available at www.wearecandidly.com or such other website address as may be notified to the Customer from time to time.

User Subscriptions:

the user subscriptions purchased by the Customer pursuant to Clause 9.1 which entitle Authorised Users to access and use the Services and the Documentation in accordance with this Agreement.

UK Data Protection Legislation:

all applicable data protection and privacy legislation in force from time to time in the UK including the retained EU law version of the General Data Protection Regulation ((EU) 2016/679) (UK GDPR), the Data Protection Act 2018, the Privacy and Electronic Communications Directive (2002/58/EC) (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended.

Virus:

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.

Vulnerability:

a weakness in the computational logic (for example, code) found in software and hardware components that, when exploited, results in a negative impact to confidentiality, integrity, or availability, and the term Vulnerabilities shall be construed accordingly.


1.2 Clause, Schedule, and paragraph headings shall not affect the interpretation of this Agreement


1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality) and that person’s personal representatives, successors, or permitted assigns.


1.4 A reference to a company shall include any company, corporation, or other body corporate, wherever and however incorporated or established.


1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.


1.6 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.


1.7 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.


1.8 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.


1.9 A reference to writing or written includes email.


1.10 Except where a contrary intention appears, a reference to a clause, schedule, or annex is a reference to a clause of, or schedule or annex to, this Agreement.


1.11 Any words following the terms including, include, in particular, for example, or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.

1.12 The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement.  Any reference to this Agreement includes the Schedules.


1.13 If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.


2. User Subscriptions


2.1 Subject to the Customer purchasing the User Subscriptions in accordance with Clause 3.3 and Clause 9.1, the restrictions set out in this Clause 2 and the other terms and conditions of this Agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.


2.2 In relation to the Authorised Users, the Customer undertakes that:


(a) the maximum number of Authorised Users that it authorises to access and use the Services and the Documentation shall not exceed the number of User Subscriptions it has purchased from time to time;


(b) it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;


(c) each Authorised User shall keep a secure password for their use of the Services and Documentation, that such password shall be changed no less frequently than every ninety (90) days, and that each Authorised User shall keep their password confidential;


(d) it shall maintain a written, up to date list of current Authorised Users and provide such list to the Supplier within five (5) Business Days of the Supplier’s written request at any time or times;


(e) it shall permit the Supplier or the Supplier’s designated auditor to audit the Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with this agreement.  Each such audit may be conducted no more than once per quarter, at the Supplier’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;


(f) if any of the audits referred to in Clause 2.2(e) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to the Supplier’s other rights, the Customer shall promptly disable such passwords and the Supplier shall not issue any new passwords to any such individual; and


(g) if any of the audits referred to in Clause 2.2(e) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier's other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the prices set out in paragraph 1 of Schedule 1 within ten (10) Business Days of the relevant audit.


2.3 The Customer shall not access, store, distribute, or transmit any Viruses, or any material during the course of its use of the Services that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing, or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) is otherwise illegal or causes damage or injury to any person or property.

and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.


2.4 The Customer shall not:

(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this agreement:

(i) 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

(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer, or otherwise reduce to human-perceivable form all or any part of the Software; or


(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or


(c) use the Services and/or Documentation to provide services to third parties; or


(d) subject to Clause 22.1, 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


(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2; or


(f) introduce or permit the introduction of, any Virus into the Supplier’s network and information systems.


2.5 The Customer shall 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 the Supplier.


2.6 The rights provided under this Clause 2 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.


3. Additional User Subscriptions


3.1 Subject to Clause 3.2 and Clause 3.3, the Customer may, from time to time during any Subscription Term, purchase additional User Subscriptions in excess of the number set out in paragraph 1 of Schedule 1 and the Supplier shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of this Agreement.


3.2 If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify the Supplier in writing.  The Supplier shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request.  Where the Supplier approves the request, the Supplier shall activate the additional User Subscriptions within 2 days of its approval of the Customer’s request.


3.3 If the Supplier approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within thirty (30) days of the date of the Supplier's invoice, pay to the Supplier the relevant fees for such additional User Subscriptions as set out in paragraph 2 of Schedule 1 and, if such additional User Subscriptions are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).


4. Services


4.1 The Supplier shall, during the Subscription Term, provide the Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.


4.2 The Supplier shall use commercially reasonable endeavours to make the Services available twenty-four hours a day, seven days a week, except for:


(a) planned maintenance carried out during the maintenance window of 8.00 pm to 4.00 am UK time, and


(b) unscheduled or emergency maintenance, provided that the Supplier has used reasonable endeavours to give the Customer notice in advance.


4.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided.  The Supplier may amend the Support Services Policy in its sole and absolute discretion from time to time.


5. Data Protection


5.1 Shared Personal Data.  This clause sets out the framework for the sharing of personal data between the parties.  To the extent that the Services require the processing of personal data, the Supplier will act as a controller and the Customer will act as a controller (as such terms are defined in the Data Protection Legislation).  Each party acknowledges that the Customer (referred to in this Clause 5 as the Data Discloser) will disclose to the Supplier Shared Personal Data collected by the Data Discloser.


5.2 Effect of non-compliance with Data Protection Legislation.  Each party shall comply with all obligations imposed on a controller under the Data Protection Legislation, and any material breach of the Data Protection Legislation by one party shall, if not remedied within thirty (30) days of written notice from the other party, give grounds to the other party to terminate this Agreement with immediate effect.


5.3 Particular obligations related to data sharing.

(a) The Customer shall ensure that it has all necessary notices and consents (including where necessary, but not limited to, explicit consent from data subjects to process and retain personal data and special categories/sensitive personal data) and lawful bases in place to enable lawful transfer of the Shared Personal Data to the Permitted Recipients;


(b) Each party shall give full information to any data subject whose personal data may be processed under this Agreement of the nature of such processing.  This includes giving notice that, on the termination of this Agreement, personal data relating to them may be retained by or, as the case may be, transferred to one or more of the Permitted Recipients, their successors, and assignees;


(c) The Supplier will continue to retain, store, and process fully anonymised Shared Personal Data (non-personal data) for archival and analytics purposes in accordance with the Supplier’s platform privacy notice [INSERT AS LINK] and the Supplier’s retention, storing, and processing of such non-personal data shall survive termination or expiration of this Agreement;


(e) Each party shall not disclose or allow access to the Shared Personal Data to anyone other than the Permitted Recipients;


(f) Each party shall ensure that all Permitted Recipients are subject to written contractual obligations concerning the Shared Personal Data (including obligations of confidentiality) which are no less onerous than those imposed by this Agreement;


(g) Each party shall ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, 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, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it); and


(h) Each party shall not transfer any personal data received from the Data Discloser outside the UK or European Economic Area (EEA) unless the transferor ensures that: (i) the transfer is to a country approved under the applicable Data Protection Legislation as providing adequate protection; or (ii) there are appropriate safeguards or binding corporate rules in place pursuant to the applicable Data Protection Legislation; or (iii) the transferor otherwise complies with its obligations under the applicable Data Protection Legislation by providing an adequate level of protection to any personal data that is transferred; or (iv) one of the derogations for specific situations in the applicable Data Protection Legislation applies to the transfer.


5.4 Mutual assistance.  Each party shall assist the other in complying with all applicable requirements of the Data Protection Legislation.  In particular, each party shall:


(a) promptly inform the other party of the receipt of any data subject request;


(b) provide the other party with reasonable assistance in complying with any data subject request;


(c) not disclose, release, amend, delete, or block any Shared Personal Data in response to a data subject request without first consulting the other party wherever possible;


(d) assist the other party, at the cost of the other party, in responding to any request from a data subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, personal data breach notifications, data protection impact assessments, and consultations with supervisory authorities or regulators;


(e) notify the other party without undue delay and in any event within twenty-four (24) hours on becoming aware of a personal data breach;


(f) at the written direction of the Data Discloser, delete or return Shared Personal Data to the Data Discloser on termination of this Agreement unless the Shared Personal Data is processed and retained by the Supplier for archival, storage, and/or analytics purposes or the law requires storage of the Shared Personal Data;


(g) use compatible technology for the processing of Shared Personal Data to ensure that personal data inaccuracy does not arise from personal data transfers;


(h) maintain complete and accurate records and information to demonstrate its compliance with this Clause 5; and


  1. provide the other party with contact details of at least one employee as point of contact and responsible manager for all issues arising out of the Data Protection Legislation, including the joint training of relevant staff, the procedures to be followed in the event of a data security breach, and the regular review of the parties’ compliance with the Data Protection Legislation.


5.5 Indemnity.  Each party shall indemnify the other against all liabilities, costs, expenses, damages, and losses (including but not limited to any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other reasonable professional costs and expenses) suffered or incurred by the indemnified party arising out of or in connection with the breach of the Data Protection Legislation by the indemnifying party, its employees, or agents, provided that the indemnified party gives to the indemnifier prompt notice of such claim, full information about the circumstances giving rise to it, reasonable assistance in dealing with the claim and sole authority to manage, defend and/or settle it.  The liability of the indemnifying party under this Clause 5.5 shall be subject to the limits set out in Clause 13.


6. Third Party Providers

The Customer acknowledges that the Services may enable or assist it to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that it does so solely at its own risk.  The Supplier makes no representation, warranty, or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by the Customer, with any such third party.  Any contract entered into and any transaction completed via any third-party website is between the Customer and the relevant third party, and not the Supplier.  The Supplier recommends that the Customer refers to the third party’s website terms and conditions and privacy policy prior to using the relevant third-party website.  The Supplier does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.


7. Supplier’s Obligations7.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.



7.2 The undertaking at Clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents.  If the Services do not conform with the foregoing undertaking, Supplier 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 Clause 7.1.


7.3 The Supplier:


(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; and


(b) 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 the Supplier 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 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.


7.6 The Supplier shall follow its archiving procedures for Customer Data as set out in its data protection policies and procedures.  In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its data protection policies and procedures.  The Supplier 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 the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable.


8. Customer’s Obligations


8.1 The Customer shall:


(a) provide the Supplier with:


  1. all necessary co-operation in relation to this Agreement; and
  1. all necessary access to such information as may be required by the Supplier;


in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;


(b) without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement;


(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner.  In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;

(d) 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;

(e) obtain and shall maintain all necessary licences, consents (including where necessary, but not limited to, explicit consent from data subjects to process and retain personal data and special categories/sensitive personal data), and permissions necessary for the Supplier, its contractors, and agents to perform their obligations under this Agreement, including without limitation the Services;


(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and


(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining, and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures. and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.


8.2 The Customer shall own all right, title, and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.


9. Charges and Payment


9.1 The Customer shall pay the Subscription Fees to the Supplier for the User Subscriptions in accordance with this Clause 9 and Schedule 1.


9.2 The Customer shall on the Effective Date provide to the Supplier valid, up-to-date, and complete credit card details or approved purchase order information acceptable to the Supplier and any other relevant valid, up-to-date, and complete contact and billing details and, if the Customer provides:


(a) its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:


(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and


(ii) subject to Clause 14.1, on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;


(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:


(i) on the Effective Date for the Subscription Fees payable in respect of the Initial Subscription Term; and


(ii) subject to Clause 14.1, at least thirty (30) days prior to each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period,


and the Customer shall pay each invoice within thirty (30) days after the date of such invoice.


9.3 If the Supplier has not received payment within [thirty (30) days] after the due date, and without prejudice to any other rights and remedies of the Supplier:


(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and


(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to three percent (3%) over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.


9.4 All amounts and fees stated or referred to in this Agreement:


(a) shall be payable in pounds sterling;


(b) are, subject to Clause 13.3(b), non-cancellable and non-refundable;


(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) at the appropriate rate.


10. Proprietary Rights


10.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation.  Except as expressly stated herein, this Agreement does not grant the Customer any Intellectual Property Rights in respect of the Services or the Documentation.


10.2 The Supplier confirms that it has all the Intellectual Property Rights in relation to the Services and the Documentation that are necessary to grant all the Intellectual Property Rights it purports to grant under, and in accordance with, the terms of this Agreement.


11. 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 shall not be deemed to include information that:


(a) is or becomes publicly known other than through any act or omission of the receiving party;


(b) was in the other party’s lawful possession before the disclosure;


(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or


(d) is independently developed by the receiving party, which independent development can be shown by written evidence.


11.2 Subject to Clause 11.4, each party shall hold the other’s Confidential Information in confidence and 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.


11.3 Each party shall 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.


11.4 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 11.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.


11.5 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.


11.6 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.


11.7 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.


11.8 The above provisions in this Clause 11 shall survive termination of this Agreement, howsoever arising.


12. Indemnity


12.1 The Customer shall defend, indemnify, and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses, and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services and/or Documentation, provided that:


(a) the Customer is given prompt notice of any such claim;


(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and


(c) the Customer is given sole authority to defend or settle the claim.


12.2 The Supplier shall defend the Customer, its officers, directors, and employees against any claim that the Customer’s use of the Services or Documentation in accordance with this Agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right, or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:


(a) the Supplier is given prompt notice of any such claim;


(b) the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier's expense; and


(c) the Supplier is given sole authority to defend or settle the claim.


12.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on two (2) Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.


12.4 In no event shall the Supplier, its employees, agents, and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:


(a) a modification of the Services or Documentation by anyone other than the Supplier;


(b) the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by the Supplier; or


(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.


12.5 The foregoing states the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’, and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right, or right of confidentiality.


13. Limitation of Liability


13.1 Except as expressly and specifically provided in this Agreement:


(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use.  The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions, or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;


(b) all warranties, representations, conditions, and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and


(c) the Services and the Documentation are provided to the Customer on an “as is” basis.


13.2 Nothing in this Agreement excludes the liability of the Supplier:


(a) for death or personal injury caused by the Supplier’s negligence; or


(b) for fraud or fraudulent misrepresentation.


13.3 Subject to Clause 5.5, Clause 13.1, and Clause 13.2:


(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution, or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and


(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at Clause 12.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the lesser of   or the total Subscription Fees paid for the User Subscriptions during the twelve (12) months immediately preceding the date on which the claim arose.


13.4 Nothing in this Agreement excludes the liability of the Customer for any breach, infringement, or misappropriation of the Supplier’s Intellectual Property Rights.


14. Termination


14.1 This Agreement shall, unless otherwise terminated as provided in this clause 14, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this Agreement shall be automatically renewed for successive periods of twelve (12) months (each a “Renewal Period”), unless:


(a) either party notifies the other party of termination, in writing, at least sixty (60) days before the end of the Initial Subscription Term or any Renewal Period, in which case this Agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or


(b) otherwise terminated in accordance with the provisions of this Agreement;


and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.


14.2 Without affecting any other right or remedy available to it, the Supplier may terminate this Agreement with immediate effect by giving written notice to the Customer if:


(a) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than sixty (60) days after being notified in writing to make such payment;


(b) the Customer commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of thirty (30) days after being notified in writing to do so;


(c) the Customer repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;


(d) the Customer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), obtaining a moratorium, being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;


(e) the Customer suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; and


(f) the Customer’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this Agreement is in jeopardy.


14.3 Without limiting its other rights or remedies, the Supplier may suspend provision of the Services under this Agreement or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Clause 14.2(b) to Clause 14.2(d), or the Supplier reasonably believes that the Customer is about to become subject to any of them.


14.4 On termination of this Agreement for any reason the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt.


14.5 On termination of this Agreement for any reason:


(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;


(b) the Supplier may destroy or otherwise dispose of any of the Customer Data in its possession in accordance with clause 5.4, unless the Supplier receives, no later than ten (10) days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data.  The Supplier shall use reasonable commercial endeavours to deliver the back-up to the Customer within thirty (30) days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and


(c) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.


14.6 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this Agreement shall remain in full force and effect.


15. Force Majeure


The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions, or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, pandemic, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.


16. Conflict


If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.


17. Variation


No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).


18. 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.


19. Rights and Remedies


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.


20. Severance


20.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal, or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.


20.2 If any provision or part-provision of this Agreement is deemed deleted under clause 20.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.


21. Entire Agreement


21.1 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.


21.2 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.


21.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.


21.4 Nothing in this clause shall limit or exclude any liability for fraud.


22. Assignment


22.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement.


22.2 The Supplier may at any time assign, transfer, charge, sub-contract, or deal in any other manner with all or any of its rights or obligations under this Agreement.


23. No Partnership or Agency


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).


24. 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.


25. Counterparts


25.1 This Agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one Agreement.


25.2 Transmission of an executed counterpart of this agreement (but for the avoidance of doubt not just a signature page) by email (in PDF, JPEG, or other agreed format) shall take effect as the transmission of an executed “wet-ink” counterpart of this Agreement.  If method of transmission is adopted, without prejudice to the validity of the Agreement thus made, each party shall on request provide the other with the “wet ink” hard copy original of their counterpart.


25.3 No counterpart shall be effective until each party has provided to the others at least one executed counterpart.


26. Notices


26.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party's email address as set out in this Agreement.


26.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by email shall be deemed to have been received at the time of transmission (as shown by the timed confirmation obtained by the sender).


27. Governing Law


This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.


28. Jurisdiction


Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).



This Agreement has been entered into on the date stated at the beginning of it.



Signed by [NAME OF DIRECTOR]


for and on behalf of Candidly Limited

Director


Signed by [NAME OF DIRECTOR]


for and on behalf of [NAME OF CUSTOMER]

Director