1.1 By registering for theServices, Client must read, agree with and accept all of the terms andconditions, and in these terms and conditions the term ‘Agreement’ shall be understood accordingly.
1.2 Client agrees ticking theacceptance box constitutes acceptance of this Agreement.
1.3 Further, Client agreesthat any use by Client of any of the Services shall constitute their acceptanceof the Agreement and Service Provider recommends that Client store or print offa copy of the Agreement for their records.
2.1 This Agreement shall comeinto force upon the acceptance of these terms and conditions by Client (the “Start Date”) and shall run for a periodof up to 2 weeks (“Trial Period”). The Trial Period shall be deemed tohave begun on the Start Date (whether or not that date falls before, on orafter the date of this Agreement). Having come into force, this Agreement shall continue in force until theexpiry of the Trial Period save for this Agreement may be terminated by eitherparty giving written notice to the other party in advance of termination.
2.2 To continue with theServices following the expiry of the Trial Period, Client must engage withService Provider to enter into such agreement.
3. Provision & Procurement of the Services
3.1 Service Provider agrees toprovide the Services to Client in the manner contemplated by this Agreement,and Client agrees to procure the Services from Service Provider during the TrialPeriod, in each case upon the terms and subject to the conditions of thisAgreement.
3.2 Service Provider willexercise reasonable skill and care in the provision of the Services.
3.3 Subject to compliance byClient with Clause 5, Service Provider will use all reasonable endeavours tofulfil the service levels specified in this Agreement.
4. This Agreement
4.1 This Agreement describes theServices provided.
4.2The details of the technical and organisational security measures implementedby Service Provider are available on request by Client.
5. Client’s Cooperation
5.1 Client will from time totime provide to Service Provider’s personnel such training in relation to thebusiness, affairs, processes and objectives of Client as may be required bythem in order to permit them effectively and efficiently to provide theServices.
5.2 Client will make availableto Service Provider in a timely way all information and materials required byService Provider in order to provide the Services. Client will ensure that all information andmaterials provided by or on behalf of Client to Service Provider are accurate,complete and up to date in all respects.
5.3 Client will give ServiceProvider clear briefings with regard to its requirements of the Services fromtime to time.
5.4 Client will ensure thatnothing required by it of Service Provider from time to time is in breach ofany applicable laws or infringes any right of any person.
6.1 Thereare no charges payable by Client for the Trial Period.
7.1 Each party shall maintainthe confidentiality of the other’s Confidential Information and shall not,without the prior written consent of the other party use, disclose, copy ormodify the other party’s Confidential Information (or permit others to do so)other than as necessary for the enjoyment of its rights and performance of itsobligations under this Agreement.
7.2 Each party undertakes todisclose the other party’s Confidential Information only to those of itsofficers, employees, agents and contractors to whom, and to the extent towhich, such disclosure is necessary for the purposes contemplated by thisAgreement, and to procure that such persons are made aware of, and agree toobserve, the obligations in this Clause 7.
8. Data Protection
8.1 The parties acknowledgethat, in relation to Relevant Personal Data, and for the purposes of the DataProtection Legislation, Client is the data controller and Service Provider is adata processor.
8.2 The types of personal datato be processed pursuant to this Agreement and for the purposes of ServiceProvider providing the Services, and as further instructed by Client in its useof the Services, shall include Client’s name, email and address (including thename, email and address of Client’s employees, contractors, collaborators,customers, prospects, suppliers and subcontractors) and Applicant Data(including Applicants’ CVs and personal data contained in them) and thecategories of data subject to whom such personal data relates shall include Client(including Client’s employees, contractors, collaborators, customers,prospects, suppliers and subcontractors) and Applicants. Relevant Personal Datawill be processed for the duration of the Term and in accordance with this Agreementand may be subject to the following processing activities:
a) Storage and other processing necessary toprovide, maintain and improve the Services; and/or
b) Disclosure in accordance with this Agreement and/oras compelled by applicable laws.
8.3 Service Provider willcreate a portal for Client after the Start Date for the management of ClientData and to allow for the engagement with Applicants by Client. Client agreesthat Applicants may submit Applicant Data to the Platform for processing in accordancewith this Agreement.
8.4 Service Provider shall notprocess any Relevant Personal Data except on and subject to the instructions ofClient (either specific written instructions or general instructions set out inthis Agreement), including with regard to transfer of Relevant Personal Data toa third country or international organisation, unless required to processRelevant Personal Data other than as instructed by European Union or MemberState law. If Service Provider is required by applicable law to process any RelevantPersonal Data for purposes other than those agreed under this Agreement, itshall promptly inform
Client of that legalrequirement before processing such Relevant Personal Data, unless thatapplicable law prohibits such information being given on important publicinterest grounds. Subsequent instructions may also be given by Clientthroughout the duration of the processing of Relevant Personal Data. Theseinstructions shall always be documented.
8.5 Service Provider shalltake all reasonable, appropriate technical and organisational measures with aview to preventing unauthorised access to, or unauthorised alteration,disclosure, loss or destruction of, any Relevant Personal Data in the custodyof Service Provider, and Service Provider shall take all reasonable steps toensure that its personnel are (i) aware of and comply with those measures, (ii)keep the Relevant Personal Data confidential, and (iii) do not disclose theRelevant Personal Data to third parties unless Client specifically authorisesthe disclosure, the disclosure is authorised under this Agreement or asrequired by applicable laws.
8.6 Sub-Processors.Without limiting Service Provider’s other obligations under this Agreement,Service Provider has Client’s general authorisation for the engagement of sub-processorsto process Relevant Personal Data. Where Service Provider uses suchsub-processors, Service Provider shall use reasonable endeavours to ensure thatat least the same data protection obligations as set out in this Agreementshall be imposed on that sub-processor by way of contract or other legal actunder European Union law or the laws of a Member State. Service Provider shallinform Client of any intended changes concerning the addition or replacement ofany sub-processors. Service Provider shall remain liable to Client forprocessing by such sub-processors as if the processing was being conducted byService Provider.
8.7 Cross-border transferof Relevant Personal Data. Service
Provider (or anysub-processor) must not transfer or otherwise process Relevant Personal Dataoutside the European Economic Area (“EEA”) without obtaining Client's priorwritten consent. Where such consent is granted, Service Provider may only process,or permit the processing, of Relevant Personal Data outside the EEA under thefollowing conditions:
a) Service Provider is processing RelevantPersonal Data in a territory which is subject to a current finding by theEuropean Commission under the Data Protection Legislation that the territoryprovides adequate protection for the privacy rights of individuals; or
b) Service Provider participates in a validcross-border transfer mechanism under the Data Protection Legislation, so thatService Provider (and, where appropriate, Client) can ensure that appropriatesafeguards are in place to ensure an adequate level of protection with respectto the privacy rights of individuals as required by Article 46 of the GDPR; or
c) the transfer otherwise complies with the DataProtection Legislation.
If any Relevant PersonalData transfer between Client and Service Provider requires execution ofstandard contractual clauses approved by the European Commission (“SCC”) inorder to comply with the Data Protection Legislation, the parties will completeall relevant details in, and execute, the relevant SCC, and take all otheractions required to legitimise the transfer. If Client consents to the transferof Relevant Personal Data by Service Provider to a sub-processor located
outside the EEA incompliance with the provisions of this Clause 8.7, then Client authorisesService Provider to enter into SCC with the sub-processor in Client’s name andon its behalf. Service Provider will make the executed SCC available to Clienton request.
8.8 Assistance. Service Provider shall:
a) fully co-operate with and assist Client incomplying with its obligations under the Data Protection Legislation includingbut not limited to demonstrating compliance with the GDPR;
b) at Client’s cost and expense, make availableto Client all information necessary to demonstrate compliance with theobligations set out in Article 28 of the GDPR and allow for and contribute toaudits, including inspections, conducted by Client or another auditor mandatedby Client provided always such inspections and/or audits shall be carried outon reasonable notice, at reasonable intervals (and no more than once in anytwelve (12) month period) and during normal business hours of Service Providerand upon production of appropriate identity evidencing authority. The scope ofany examination and review by Client of the use by Service Provider of theClient Data shall be agreed in writing prior to the commencement of any suchexamination and review. Client undertakes to ensure avoidance of disruption tothe day to day operations of Service Provider’s business and/or damage orinjury to Service Provider’s equipment, premises and personnel. ServiceProvider may require, as a condition of granting access to its premises for thepurposes of such inspections and/or audits, that Client (and representatives ofClient) enter into reasonable confidentiality undertakings with ServiceProvider;
c) immediately inform Client if, in its opinion,an instruction given or request made pursuant to this Clause 8 infringes DataProtection Legislation. To the maximum extent permitted by mandatory law, ServiceProvider shall have no liability howsoever arising (whether in contract, tort(including negligence) or otherwise) for any losses, costs, expenses orliabilities arising from or in connection with any processing in accordancewith Client's processing instructions following Client's receipt of thatinformation;
d) taking into account the nature of theprocessing, provide, at Client’s cost and expense, such assistance including byusing appropriate technical and organisational measures as Client may require forthe fulfilment of Client’s obligation to respond to requests for exercising thedata subject's rights laid down in the Data Protection Legislation (including ChapterIII of the GDPR); and
e) provide such reasonable co-operation and assistanceas Client may require to enable Client to comply with its obligations and inparticular those obligations under Articles 32-36 of the GDPR. Service Providershall promptly notify Client of each request from a data subject in respect ofRelevant Personal Data relating to him. Service Provider shall not accede to any such request except on theinstructions of Client.
a) ensure that theClient Data which Service Provider is instructed to process pursuant to thisAgreement is:
i. obtained lawfully, fairly and in a transparentmanner in relation to the data subject (including in respect of how consent isobtained);
ii. collectedand processed for specified, explicit and legitimate purposes, and not furtherprocessed in a manner incompatible with those purposes;
iii. adequate,relevant and limited to what is necessary in relation to the purposes for whichit is processed;
iv. accurate,and where necessary kept up to date;
v. erasedor rectified without delay where it is inaccurate, having regard to thepurposes for which they are processed;
vi. keptin a form which permits identification of data subjects for no longer than isnecessary for the purposes for which the Client Data are processed (subject tocircumstances where Client Data may be stored for longer periods insofar as itwill be processed solely for archiving purposes in the public interest,scientific or historical research purposes or statistical purposes, and subjectto the implementation of appropriate technical and organisational measures);
vii. processedin a manner that ensures appropriate security of the Client Data, includingprotection against unauthorised or unlawful processing and against accidentalloss, destruction or damage, using appropriate technical or organisationalmeasures;
b) provide such information and such assistance to ServiceProvider as Service Provider may reasonably require, and within the timescalesreasonably specified by Service Provider, to allow Service Provider to complywith its obligations under Data Protection Legislation;
c) not alter the technical arrangements relating to the format,presentation and distribution of the Client Data to Service Provider withoutService Provider’s prior written approval;
(d) not pass any Client Data to Service Provider for processingwhich has been kept by Client for a period that is longer than necessary; and
(e) notify Service Provider in writing without delayof any situation or envisaged development that shall in any way influence,change or limit the ability of Service Provider to process the Client Data asset out in this Agreement.
8.10 Client Warranties, Clientrepresents and warrants to Service Provider, on a continuing basis for theduration of the Trial Period:
a) that all Relevant Personal Data sourced byClient for use in connection with the Services, prior to such Relevant PersonalData being provided to or accessed by Service Provider for the performance of theServices under this Agreement, shall comply in all respects, including in termsof its collection, storage, processing, accuracy, adequacy, legality and relevance(which shall include Client providing all of the required fair processinginformation to, and obtaining all necessary consents from, data subjects), withthe Data Protection Legislation;
b) that all instructions given by Client toService Provider in respect of Relevant Personal Data shall at all times be inaccordance with the Data Protection Legislation;
c) that Client is satisfied that (i) ServiceProvider’s processing operations are suitable for the purposes for which Clientproposes to use the Services and engages Service Provider to process theRelevant Personal Data, and (ii) Service Provider has sufficient expertise,reliability and resources to implement technical and organisational measuresthat meet the requirements of the Data Protection Legislation;
d) that Client has complied with all of itsobligations (however arising) in respect of all Relevant Personal Data;
e) that the processing by Service Provider ofRelevant Personal Data in the manner contemplated by this Agreement will notinfringe the rights of any person under the Data Protection Legislation or anysimilar laws in any jurisdiction other than Ireland; and
f) that Client will respond to enquiries fromdata subjects and the Data Protection Commission (or any other relevantSupervisory Authority) concerning the processing of the Personal Data by theCompany, unless the Parties have agreed that Service Provider will so respond,in which case the Company will still respond to the extent reasonably possible andwith the information reasonably available to it if Service Provider is unwillingor unable to respond. Responses will be made within a reasonable time and inaccordance with the Data Protection Legislation.
8.11 Indemnity. Client shall indemnifyService Provider and any sub-processor of Service Provider on demand from timeto time from and against all Losses suffered or incurred by Service Provider:(i) arising out of or in connection with non-compliance by Client with DataProtection Legislation; and/or (ii) arising out of or in connection with theprocessing of any personal data on the instructions of Client; and/or (iii)which would not have been suffered or incurred by it had none of the foregoingrepresentations and warranties in this Clause 8.11 been breached. If anythird party makes a claim against Service Provider, or notifies an intention tomake a claim against Service Provider which will, or is reasonably likely to,give rise to an indemnity claim from Service Provider against Client under thisClause 8.11, Service Provider shall: (i) give written notice of the claimagainst Service Provider to Client as soon as reasonably practicable;(ii) notmake any admission of liability in relation to the claim against ServiceProvider without Client’s prior written consent; (iii) at Client’s request,cost and expense, where Client has requested to conduct the defence of theclaim against Service Provider, including settlement, co-operate and assist toa reasonable extent with Client’s defence of the claim against Service Provider.
8.12 Limitation ofLiability. Client acknowledges that Service
Provider (i) is reliant onClient for directions and instructions as to the extent to which ServiceProvider is entitled to use and process the Relevant Personal Data and (ii) isunder no duty to investigate the completeness, accuracy or sufficiency of anyinstructions received from Client, or any Client Data. Consequently, andwithout prejudice the limitations in Clause 11, Service Provider shall not beliable for any breach of this Agreement and/or the Data Protection Legislationarising from any action or omission by Service Provider, to the extent that suchaction or omission resulted from Client’s instructions, any breach of thisAgreement by Client and/or the transactions contemplated by this Agreement.
8.13 Clientacknowledges and agrees that Service Provider stores all of the RelevantPersonal Data with Amazon Web Services (AWS)in Westmeath, Ireland. AWS is a highly secure cloud storage system whereby alldata is encrypted, both at rest and in transit with permissions and accesscontrols.
8.14 Service Provider andClient shall comply with their obligations under the Data Protection Legislationand agree to take account of any guidance issued by the Data ProtectionCommission, any other relevant supervisory authority and/or the European Data ProtectionBoard.
9.1 Each party agrees that itwill not, either on its own account or in partnership or association with anyperson, and whether directly or indirectly, during the currency of thisAgreement, or for a period of 12 months commencing at the end of the TrialPeriod, solicit or entice away or attempt to solicit or entice away (orauthorise the taking of any such action by any other person) any employee orcontractor of the other party who has been involved in the relationship betweenthe parties in connection with this Agreement at any time during the last 12months of the Trial Period. If a partybreaches this Clause, then it shall pay to the other party (the “affected party”), by way of liquidateddamages, an amount equal to sixty per cent of the gross annual salary or annualcontract amount payable to the employee or contractor concerned at the time oftermination of his relationship with the affected party (this amount being anestimate at the date of this Agreement of the money value of the loss anddamage which the affected party would suffer (among other ways) in loss ofearnings associated with that person and in finding, engaging and training areplacement).
9.2 Each of the restrictions inClause 9.1 shall be construed and take effect independently of the others. The parties consider the restrictionscomprised in Clause 9.1 to be reasonably required for the protection of theirrespective legitimate interests, but each party against whom it is sought toenforce any of such restrictions further agrees to accept and observe suchsubstituted restriction(s) (in place of all or any of those comprised in Clause9.1) as the other party may from time to time specify, provided that such substitutedrestriction(s) are in all respects less restrictive in extent than thoseprovided for in Clause 9.1 which they replace.
9.3 Client acknowledges and agrees that it is not intended thatthere should be transferred to Service Provider the obligations of any personas employer arising under any contract of employment, in consequence of, or inconnection with, the entry by the parties into, or the performance by them oftheir obligations under, this Agreement, or the transfer to Service Provider ofany function to be performed by it under this Agreement. If, notwithstanding that intention, any suchobligations are transferred to Service Provider by operation of law (whetherpursuant to the European Communities (Protection of Employees on Transfer ofUndertakings) Regulations 2003, or analogous legislation or otherwise), thenClient shall indemnify Service Provider upon request against all Losses whichmay be suffered or incurred by Service Provider arising out of or inconnection with any such transfer, or any contract of employment so transferredto Service Provider, or the termination of any such contract of employment byService Provider subsequent to any such transfer (which Service Provider shallfree in its absolute discretion to terminate without prejudice to its rightsunder this Clause).
10. Materials& Intellectual Property
10.1 All goods and materialssupplied by or on behalf of Client to Service Provider from time to time inconnection with this Agreement shall: (a) as between Service Provider andClient, remain the property of Client; (b) be at Service Provider’s risk duringthe period starting on their delivery to, and acceptance by, Service Providerand ending upon their dispatch by Service Provider in the manner contemplatedby this Agreement and shall be at Client’s risk at all other times; and (c)shall be returned by Service Provider to Client at Client’s request and cost.
10.2 Client represents, warrantsand undertakes to Service Provider that none of the following, nor their usenor (as appropriate) handling by Service Provider in the course of theprovision of the Services in accordance with this Agreement, will infringe theIntellectual Property Rights of any person, that is to say any (a) equipment,invention, system, process, (b) trademark, service-mark or brand name, or (c)computer programme, data, data-base, image or series of images, sound recordingor text, in each case made available by or on behalf of Client to ServiceProvider in connection with this Agreement.
10.3 Client will defend,indemnify and hold harmless Service Provider on demand against all Losses whichmay be suffered or incurred by Service Provider, which would not have arisenhad none of the representations, warranties or undertakings of Service Providerin Clause 10.2 been breached, and/or which arises directly or indirectly out ofor in connection with the Services, or the performance by Service Provider ofits obligations under this Agreement, or the business or affairs of Client,except to the extent that the Loss suffered or incurred by Service Provider hasbeen caused by negligence or wilful default on the part of Service Provider.
11.1 Neither party shall beliable to the other for any failure or delay in the performance of any of its obligationsunder this Agreement which is caused by any event or circumstances beyond itscontrol including any labour disputes between a party and its employees.
11.2 Nothing in this Agreementshall exclude or limit a party’s liability (a) under the tort of deceit; or (b)to the extent that, under applicable law, it cannot be excluded or limited.
11.3 Subject to Clause 11.2,neither party shall be liable to the other in contract, tort (includingnegligence) or otherwise howsoever for any of the following losses or damage(whether or not such loss or damage was foreseen, foreseeable, known orotherwise): (a) loss of revenue, (b) loss of actual or anticipated profits, (c)loss of contracts, (d) loss of the use of money, (e) loss of anticipatedsavings, (f) loss of business, (g) loss of opportunity, (h) loss of goodwill,(i) loss of reputation, (j) loss of, damage to or corruption of data, or (k)any indirect or consequential loss howsoever caused (including, for theavoidance of doubt, whether such loss or damage is of a type specified insub-clauses (a) to (j) above) whether arising out of, or in connection with, orin relation to any goods or services supplied under this Agreement or thesupply or non-supply or purported supply or delay in supply of any goods orservices under this Agreement or otherwise out of or in connection with or inrelation to this Agreement or any transaction or matter contemplated by it.
11.4 This Clause 11 prevailsover all other provisions of this Agreement, and sets forth the entireliability of Service Provider in respect of (a) the performance,non-performance, purported performance or delay in performance by ServiceProvider of its obligations under this Agreement; and (b) otherwise inconnection with, or in relation to, this Agreement or any matter contemplatedby it.
11.5 The terms of this Agreementare in lieu of all other conditions, warranties and other terms concerning thesupply or purported supply of, or failure to supply or delay in supplying, ofany goods and/or services (except for those arising under Section 12 of theSale of Goods Act 1893 (as amended)) which might but for this Clause 11 haveeffect between Service Provider and Client or would otherwise be implied orincorporated into this Agreement or any collateral contract, whether bystatute, common law or otherwise (including the implied conditions, warrantiesor other terms as to satisfactory quality, fitness for purpose or as to the useof reasonable skill and care), all of which are hereby excluded. Subject to Clause 11.2, Service Provider doesnot accept, and excludes, any Liability for Breach of Duty other than any suchliability arising under this Agreement.
12.1 In relation toAuthorised Users, Client undertakes:
a) to comply with fairusage of the Service when it comes to the number of Authorised Users that itauthorises to access and use the Services and the Documentation; and
b) that it will notallow or suffer any User Subscription to be used by more than one individual AuthorisedUser save without the written consent of Service Provider.
12.2 Service Provider shall ensure that, on or promptlyfollowing, the Start Date, Service Provider shall create an account for eachAuthorised User and shall provide to the Authorised User login details for thatAccount for the Trial Period. EachAuthorised User shall keep such Account details secure and confidential.
12.3 Service Provider hereby grants Client a worldwide,non-exclusive licence to use the Services during the Trial Period.
12.4 Client shall use reasonable endeavours, includingreasonable security measures relating to Account access details, to ensure thatno unauthorised person may gain access to the Services.
12.5 Service Providershall use all reasonable endeavours to maintain the availability of theServices to Client at the gateway between the public internet and the networkof hosting services provider for the Services, with a minimum of 99.95% uptime.
12.6 For the avoidance of doubt, downtime causeddirectly or indirectly by any of the following shall not be considered a breachof these Conditions:
a) a Force MajeureEvent;
b) a fault or failureof the internet or any public telecommunications network;
c) a fault or failureof Client’s computer system or networks;
d) scheduledmaintenance carried out in accordance with these Conditions; or
e) a fault or failurewith any partner site associated with Service Provider.
12.7 Client must not used the Services:
(a)in any way that is unlawful, illegal, fraudulent or harmful;
(b)in connection with any unlawful, illegal, fraudulent or harmful purpose oractivity; or
(c)in a manner that may transmit any virus or cause a malicious software attack.
12.8 For the avoidance of doubt, Client has no right toaccess the software code (including object code, intermediate code and sourcecode) of the Platform, either during or after the Trial Period.
12.9 Client shall not:
(a)attempt to copy, modify, duplicate, create derivative works from frame, mirrorrepublish, download, display, transmit or distribute all or any portion of theOccupop web application and /or Documentation available in any form or media orby any means;
(b)attempt to de-compile, reverse, compile, disassemble, reverse engineer orotherwise reduce to human perceivable form all of any part of the Occupop webapplication;
(c)access all or any part of the Services and Documentation in order to build a productor service which competes with the Services and/or Documentation; or
(d)attempt to obtain, or assist third parties in obtaining access to the Servicesand/or the Documentation, other than as provided for under Clause 12.
13. Force Majeure
13.1 If a Force Majeure Eventgives rise to a failure or delay in either party performing any obligationunder the Agreement, that obligation will be suspended for the duration of theForce Majeure Event.
13.2 A party that becomes awareof a Force Majeure Event which gives rise to, or which is likely to give riseto, any failure or delay in that party performing any obligation under theAgreement, must:
(a) promptly notify the other;and
(b) inform the other of theperiod for which it is estimated that such failure or delay will continue.
13.3 A party whose performanceof its obligations under the Agreement is affected by a Force Majeure Eventmust take reasonable steps to mitigate the effects of the Force Majeure Event.
14.1 Service Provider maysuspend any user’s access to any or all Services without notice for:
14.1.1 use of the Services in away that violates applicable laws or regulations or the terms of thisAgreement; or
14.1.2 repeated instances ofposting or uploading material that infringes or is alleged to infringe on the copyrightor trademark rights of any person or entity.
14.2 Service Provider may,without notice, review and delete
any Relevant Personal Data or CustomerMaterials that it determines in good faith violates these terms provided that,Service Provider has no duty (unless applicable laws or regulations provideotherwise) to pre-screen, control, monitor or edit Client’s Customer Data orCustomer Materials.
14.3 If Client’s website, oruse of, the Service:
14.3.1 is being subjected todenial of service attacks or other disruptive activity,
14.3.2 is being used to engage indenial of service attacks or other disruptive activity,
14.3.3 is creating a securityvulnerability for the Service or others,
14.3.4 is consuming excessivebandwidth, or
14.3.5 is causing harm to us orothers, then Service Provider may, with electronic or telephonic notice toClient, suspend all or any access to the Service.
14.4 Service Provider will makecommercially reasonable efforts to (a) limit the suspension to the affectedportion of the Services and (b) promptly resolve the issues causing thesuspension of the Service. Nothing in this Clause limits Service Provider’sright to terminate for cause as outlined above, if Service Provider determines thatClient is acting, or has acted, in a way that has or may negatively reflect onor affect Service Provider, its prospects, or its customers.
14.5 Upon termination orexpiration of this Agreement, Client will stop all use of the Services.
15. General provisions
15.1 This Agreement is made onlyin the English language. If there is any conflict in meaning between theEnglish language version of this Agreement and any version or translation ofthis Agreement in any other language, the English language version shallprevail. Each document and communicationreferred to in this agreement or to be delivered under it shall be in theEnglish language or, if not, accompanied by an English translation of it,certified as accurate by an officer of the party issuing that document orcommunication;
15.2 The provisions of Clauses7, 8, 9, 10, 11, 14 and 15 shall survive the termination of this Agreementhowever arising, and shall continue to bind the relevant party or partieswithout limit in time.
15.3 Termination of thisAgreement (however arising) shall not affect any rights of the parties accruedup to the date of termination.
15.4 Client permits ServiceProvider to use of its name and logo in relation to the promotion of theServices.
15.5 This Agreement shall begoverned by and construed in accordance with the laws of Ireland.
15.6 If any dispute, questionor difference arises between the parties out of or in connection with thisAgreement (other than one arising out of or in connection with an allegedbreach of Clause 9.1, in respect of which the party alleging the breach elects to issue proceedings in the Irishcourts), then any party may give notice to the other requiring the dispute ordifference concerned to be referred to arbitration, whereupon the dispute ordifference concerned shall be, and is hereby, referred to the arbitration of aperson to be agreed upon by the parties or, in default of agreement, appointedby the President for the time being of the Law Society of Ireland upon theapplication of either party, or in the event of his being unwilling or unableto do so, by the next senior officer of the Law Society of Ireland who iswilling and able to make the appointment. The provisions of this Clause with regard to the appointment of thearbitrator shall apply also to the appointment (whether by agreement orotherwise) of any replacement arbitrator where the original arbitrator (or anyreplacement) has been removed by order of the High Court, or refuses to act, oris incapable of acting, or dies. Everysuch arbitration shall be subject to the provisions of the Arbitration Acts1954 to 1998. Unless otherwise agreed inwriting between the parties, every such arbitration shall take place in Dublin,Ireland.
15.7 Each of the partiesirrevocably agrees that the courts of Ireland shall have exclusive jurisdictionto hear and determine any suit, action or proceedings, and to settle anydispute, question or difference arising out of or in connection with an allegedbreach of Clause 9.1 in respect of which the party alleging the breach electsto issue proceedings in the Irish courts and, for those purposes, each partyirrevocably submits to the jurisdiction of those courts.
15.8 Client will not assign thebenefit of this Agreement without the written consent of Service Provider.
15.9 If the whole or any partof a provision of this Agreement is or becomes illegal, invalid orunenforceable in any jurisdiction, that will not affect the legality, validityor enforceability in that jurisdiction of the remainder of the provision inquestion or any other provision of this Agreement; or the legality, validity orenforceability in any other jurisdiction of that or any other provision of thisAgreement.
15.10 Each of the rights of eachparty under this Agreement may be exercised as often as is necessary, iscumulative and not exclusive of any other rights which that party may haveunder this Agreement, law or otherwise; and may be waived only in writing andspecifically. Delay by a party inexercising, or the non-exercise by a party of, any such right will notconstitute a waiver of that right.
15.11 This Agreement constitutesthe sole and entire agreement between the parties in relation to its subjectmatter, and supersedes all prior written and oral arrangements, understandings,representations, warranties and agreements between them in that regard (ifany).
15.12 Client shall at all timesuse an official company email address to access the Service. Failure to usesuch an address may result in termination of the Agreement at the discretion ofService Provider.
15.1 In this Agreement:
“Applicant” means an individual candidate applying for ajob
with Client through thePlatform;
“Applicant Data” means any personal data relating to anApplicant;
“Authorised User”means those employees, agents and independent contractors of Client who areauthorised by Client to use the Services and the Documentation as described in Clause12.1;
“Breach of Duty” means the breach of any obligation or duty to takereasonable care or exercise reasonable skill which arises from the express orimplied terms of a contract or under common law (but not any stricter duty);
“Client Data” means the Applicant Datasupplied by Client or
an Applicant to ServiceProvider from time to time;
“Confidential Information” means, in relation to a party,information (in whatever form communicated or recorded) belonging or relatingto that party, its business affairs or activities which is not in the publicdomain and which (a) that party has marked as confidential or proprietary, or(b) has been described as confidential by that party to the other (orally or inwriting), or (c) due to its character or nature, a reasonable person in a likeposition to its recipient and under like circumstances would treat asconfidential; other than anysuch information which: (i) was, at the time of receipt, published or otherwisegenerally available to the public; or (ii) has, after receipt by the recipient,been published or otherwise made generally available to the public, through no act or omission of the recipient;or (iii) the recipient can demonstrate was already lawfully in its possessionat the time of receipt, without any restrictions on its disclosure; or (iv) therecipient can demonstrate, was independently developed by it or on its behalf;or (v) is obtained by the recipient from a third party free from any obligationof confidentiality for the benefit of the disclosing party or (vi) is requiredby law, court or the order of any competent authority, to be disclosed,provided in the case of this sub-clause (vi) that to the extent permitted bylaw, prior to any disclosure, the recipient shall notify the other party of therequirement, and at the other party’s request and cost, assists it in opposingany such disclosure;
“Data ProtectionLegislation” means all applicable laws and regulations relating tothe processing of personal data and privacy in Ireland including the DataProtection Acts 1988 – 2018, the General Data Protection Regulation (EU2016/79) (the “GDPR”), the European Communities (Electronic Communications,Networks and Services) (Privacy and Electronic Communications) Regulations 2011(S.I. 336/2011), and any statutory instrument, order, rule or regulation madethereunder, as from time to time amended, extended, re-enacted or consolidatedand the terms “personal data”, “data controller”, “data processor”, “data subject”,and “process” shall have the meanings given to those terms in such dataprotection laws and regulations;
“Documentation” means thedocumentation for the Services produced by Service Provider and delivered ormade available by Service Provider to Client;
“Force Majeure Event” means an event,or series of related events, that is outside the reasonable control of theparty affected (including failures of the internet or any publictelecommunications network, hacker attacks or infections, power failuresindustrial dispute, affecting any third party, changes to the law, disasters,explosions, fires, floods, riots, terrorist attacks and wars);
“Intellectual Property Right” means the rights of aperson under or in respect of any patent, trademark, service mark, registereddesign, drawing, utility model, design right, copyright, data base right, tradesecret, confidential information, technical information, know-how, business ortrade name, goodwill and all other intellectual property rights of a similar orcorresponding nature in any part of the world, whether registered or not, orcapable of registration or not, and including all applications and the right toapply for any of the foregoing;
“Liability” means liability for breach of contract, Breach of Duty,misrepresentation, restitution or any other cause of action whatsoever relatingto or arising under or in connection with this Agreement, including liabilityexpressly provided for under this Agreement or arising by reason of theinvalidity or unenforceability of any term of this Agreement (and for thepurposes of this definition, all references to ‘this Agreement’ shall be deemedto include any collateral contract);
“Loss” means anyclaim, suit, proceeding, judgement, loss, liability, cost, expense, fee,penalty, compensation or fine;
“Platform” means theplatform managed by Service Provider to provide the Services, including theapplication and database software for the Services, the system and softwareused to provide the Services, and the computer hardware on which thatapplication, database, system and software is installed;
“Relevant Personal Data” means personal data (including Client Data)delivered to Service Provider by or at the direction of Client, or collected byService Provider, for the purposes of this Agreement;
“Services” means theservices provided by Service Provider to Client under this Agreement, being acloud-based applicant tracking system that facilitates and manages the hiringprocess all from the comfort of one platform, requiring no download orinstallation, and including the Support Services when required;
“Support Services” means the provisionof 24 hour access to a helpdesk, online support during core building hours,and a dedicated account manager for additional phone support and training forMaster and Custom plans;
“Start Date” has themeaning as set out in Clause 2 herein;
“Trial Period” meansthe period specified in that regard on the Start Date; and
“User Subscriptions”means the user subscriptions purchased by Client which entitles the AuthorisedUsers to access and use the Services and the Documentation in accordance withthese Conditions.
15.2 In this Agreement, unlessthe contrary intention is stated, a reference to: (a) the singular shallinclude the plural and vice versa; (b) either gender includes the other; (c) aperson shall be construed as a reference to any individual, firm or company,corporation, governmental entity or any association or partnership (whether ornot having separate legal personality); (d) time shall be construed by reference to whatever time may from timeto time be in force in Ireland; (e) a ‘Clause’ is to a clause of these terms and conditions (f) astatute, by-law, regulation, delegated legislation or order is to the same asamended, modified or replaced from time to time, and to any by-law, regulation,delegated legislation or order made thereunder; (g) ‘including’ meanscomprising, but not by way of limitation to any class, list or category; (h)‘writing’ shall include a reference to any electronic mode of representing orreproducing words in visible form (and ‘written’ shall be construedaccordingly); and (i) ‘business day’ shall be construed as a reference to a day (other than a Saturday or Sunday) onwhich the banks are generally open for business in Dublin, Ireland and whereClient has its principal place of business; and
15.3 Headings are to be ignoredin the construction of this Agreement.