1.1 By registering for the Services, Client must read, agree with and accept all of the terms and conditions, and in these terms and conditions the term ‘Agreement’ shall be understood accordingly.
1.2 Client agrees ticking the acceptance box constitutes acceptance of this Agreement.
1.3 Further, Client agrees that any use by Client of any of the Services shall constitute their acceptance of the Agreement and Service Provider recommends that Client store or print off a copy of the Agreement for their records.
2.1 This Agreement shall come into force upon the acceptance of these terms and conditions by Client (the “Start Date”) and shall run for a period of up to 2 weeks (“Trial Period”). The Trial Period shall be deemed to have begun on the Start Date (whether or not that date falls before, on or after the date of this Agreement). Having come into force, this Agreement shall continue in force until the expiry of the Trial Period save for this Agreement may be terminated by either party giving written notice to the other party.
2.2 To continue with the Services following the expiry of the Trial Period, Client must engage with Service Provider to enter into such agreement.
3. Provision & Procurement of the Services
3.1 Service Provider agrees to provide the Services to Client in the manner contemplated by this Agreement,and Client agrees to procure the Services from Service Provider during the Trial Period, in each case upon the terms and subject to the conditions of this Agreement.
3.2 Service Provider will exercise reasonable skill and care in the provision of the Services.
3.3 Subject to compliance by Client with Clause 5, Service Provider will use all reasonable endeavors to fulfill the service levels specified in this Agreement.
4. This Agreement
4.1 This Agreement describes the Services provided.
4.2 The details of the technical and organisational security measures implemented by Service Provider are available on request by Client.
5. Client’s Cooperation
5.1 Client will from time to time provide to Service Provider’s personnel such training in relation to the business, affairs, processes and objectives of Client as may be required by them in order to permit them effectively and efficiently to provide the Services.
5.2 Client will make available to Service Provider in a timely way all information and materials required by Service Provider in order to provide the Services. Client will ensure that all information and materials 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 Service Provider clear briefings with regard to its requirements of the Services from time to time.
5.4 Client will ensure that nothing required by it of Service Provider from time to time is in breach of any applicable laws or infringes any right of any person.
6.1 There are no charges payable by Client for the Trial Period.
7.1 Each party shall maintain the confidentiality of the other’s Confidential Information and shall not,without the prior written consent of the other party use, disclose, copy or modify 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 its obligations under this Agreement.
7.2 Each party undertakes to disclose the other party’s Confidential Information only to those of its officers, employees, agents and contractors to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated by this Agreement, and to procure that such persons are made aware of, and agree to observe, the obligations in this Clause 7.
8. Data Protection
8.1 The parties acknowledge that, in relation to Relevant Personal Data, and for the purposes of the Data Protection Acts, Client is the data controller and Service Provider is both a data processor and data controller.
8.2 Service Provider shall not process any Relevant Personal Data except on and subject to the instructions of Client.
8.3 Service Provider shall take all reasonable measures with a view to preventing unauthorised access to,or unauthorised alteration, disclosure or destruction of, any Relevant Personal Data in the custody of Service Provider, and Service Provider shall take all reasonable steps to ensure that its personnel are aware of and comply with those measures.
8.4 As between Client and Service Provider all Relevant Personal Data shall be the property of Client.
8.5 Service Provider shall promptly notify Client of each request from a data subject for access to Relevant Personal Data relating to him. Service Provider shall not accede to any such request for access exception the instructions of Client.
8.6 Client represents and warrants to Service Provider, on a continuing basis for the duration of the Trial Period: (a) that all consents required for the processing of all Relevant Personal Data by Service Provider in the manner contemplated by this Agreement have been obtained and are in full force and effect; (b) that Client has complied with all of its obligations (however arising) in respect of all Relevant Personal Data; and (c) that the processing by Service Provider of Relevant Personal Data in the manner contemplated by this Agreement will not infringe the rights of any person under the Data Protection Acts or any similar laws in any jurisdiction other than Ireland. Client shall indemnify Service Provider on demand from time to time from and against all Losses suffered or incurred by Service Provider: (i) arising out of or in connection with the processing of any personal data on the instructions of Client; and/or (ii) which would not have been suffered or incurred by it had none of the foregoing representations and warranties in this Clause 8.6 been breached.
8.7 Service Provider stores all of the Relevant Personal Data with Amazon Web Services (AWS) in Westmeath, Ireland. AWS is a highly secure cloud storage system whereby all data is encrypted, both at rest and in transit with permissions and access controls.
8.8 Service Provider and Client shall comply with their obligations under the Data Protection Acts.
9.1 Each party agrees that it will not, either on its own account or in partnership or association with any person, and whether directly or indirectly, during the currency of this Agreement, or for a period of 12 months commencing at the end of the Trial Period, solicit or entice away or attempt to solicit or entice away (or authorise the taking of any such action by any other person) any employee or contractor of the other party who has been involved in the relationship between the parties in connection with this Agreement at any time during the last 12 months of the Trial Period. If a party breaches this Clause, then it shall pay to the other party (the “affected party”), by way of liquidated damages, an amount equal to sixty per cent of the gross annual salary or annual contract amount payable to the employee or contractor concerned at the time of termination of his relationship with the affected party (this amount being an estimate at the date of this Agreement of the money value of the loss and damage which the affected party would suffer (among other ways) in loss of earnings associated with that person and in finding, engaging and training are placement).
9.2 Each of the restrictions in Clause 9.1 shall be construed and take effect independently of the others. The parties consider the restrictions comprised in Clause 9.1 to be reasonably required for the protection of their respective legitimate interests, but each party against whom it is sought to enforce any of such restrictions further agrees to accept and observe such substituted restriction(s) (in place of all or any of those comprised in Clause 9.1) as the other party may from time to time specify, provided that such substituted restriction(s) are in all respects less restrictive in extent than those provided for in Clause 9.1 which they replace.
9.3 Client acknowledges and agrees that it is not intended that there should be transferred to Service Provider the obligations of any personas employer arising under any contract of employment, in consequence of, or in connection with, the entry by the parties into, or the performance by them of their obligations under, this Agreement, or the transfer to Service Provider of any function to be performed by it under this Agreement. If, notwithstanding that intention, any such obligations are transferred to Service Provider by operation of law (whether pursuant to the European Communities (Protection of Employees on Transfer of Undertakings) Regulations 2003, or analogous legislation or otherwise), then Client shall indemnify Service Provider upon request against all Losses which may be suffered or incurred by Service Provider arising out of or in connection with any such transfer, or any contract of employment so transferred to Service Provider, or the termination of any such contract of employment by Service Provider subsequent to any such transfer (which Service Provider shall free in its absolute discretion to terminate without prejudice to its rights under this Clause).
10. Materials& Intellectual Property
10.1 All goods and materials supplied by or on behalf of Client to Service Provider from time to time in connection with this Agreement shall: (a) as between Service Provider and Client, remain the property of Client; (b) be at Service Provider’s risk during the period starting on their delivery to, and acceptance by, Service Provider and ending upon their dispatch by Service Provider in the manner contemplated by 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, warrants and undertakes to Service Provider that none of the following, nor their use nor (as appropriate) handling by Service Provider in the course of the provision of the Services in accordance with this Agreement, will infringe the Intellectual 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 recording or text, in each case made available by or on behalf of Client to Service Provider in connection with this Agreement.
10.3 Client will defend,indemnify and hold harmless Service Provider on demand against all Losses which may be suffered or incurred by Service Provider, which would not have arisen had none of the representations, warranties or undertakings of Service Provider in Clause 10.2 been breached, and/or which arises directly or indirectly out of or in connection with the Services, or the performance by Service Provider of its obligations under this Agreement, or the business or affairs of Client,except to the extent that the Loss suffered or incurred by Service Provider has been caused by negligence or willful default on the part of Service Provider.
11.1 Neither party shall be liable to the other for any failure or delay in the performance of any of its obligations under this Agreement which is caused by any event or circumstances beyond its control including any labour disputes between a party and its employees.
11.2 Nothing in this Agreement shall 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 (including negligence) or otherwise howsoever for any of the following losses or damage(whether or not such loss or damage was foreseen, foreseeable, known or otherwise): (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 anticipated savings, (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 the avoidance of doubt, whether such loss or damage is of a type specified in sub-clauses (a) to (j) above) whether arising out of, or in connection with, or in relation to any goods or services supplied under this Agreement or the supply or non-supply or purported supply or delay in supply of any goods or services under this Agreement or otherwise out of or in connection with or in relation to this Agreement or any transaction or matter contemplated by it.
11.4 This Clause 11 prevails over all other provisions of this Agreement, and sets forth the entire liability of Service Provider in respect of (a) the performance,non-performance, purported performance or delay in performance by Service Provider of its obligations under this Agreement; and (b) otherwise in connection with, or in relation to, this Agreement or any matter contemplated by it.
11.5 The terms of this Agreement are in lieu of all other conditions, warranties and other terms concerning the supply or purported supply of, or failure to supply or delay in supplying, of any goods and/or services (except for those arising under Section 12 of the Sale of Goods Act 1893 (as amended)) which might but for this Clause 11 have effect between Service Provider and Client or would otherwise be implied or incorporated into this Agreement or any collateral contract, whether by statute, common law or otherwise (including the implied conditions, warranties or other terms as to satisfactory quality, fitness for purpose or as to the use of reasonable skill and care), all of which are hereby excluded. Subject to Clause 11.2, Service Provider doesn't accept, and excludes, any Liability for Breach of Duty other than any such liability arising under this Agreement.
12.1 In relation to Authorised Users, Client undertakes:
(a)to comply with fair usage of the Service when it comes to the number of Authorised Users that it authorises to access and use the Services and the Documentation;and
(b)that it will not allow or suffer any User Subscription to be used by more than one individual Authorised User save without the written consent of Service Provider.
12.2 Service Provider shall ensure that, on or promptly following,the Start Date, Service Provider shall create an account for each Authorised User and shall provide to the Authorised User login details for that Account for the Trial Period. Each Authorised 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, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the Services.
12.5 Service Provider shall use all reasonable endeavours to maintain the availability of the Services to Client at the gateway between the public internet and the network of hosting services provider for the Services, with a minimum of 99.95% uptime.
12.6 For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of these Conditions:
(a)a Force Majeure Event;
(b)a fault or failure of the internet or any public telecommunications network;
(c)a fault or failure of Client’s computer system or networks; or
(d)scheduled maintenance carried out in accordance with these Conditions.
(e)a fault or failure with any partner site associated with the 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 or activity; 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 to access the software code (including object code, intermediate code and source code) 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, mirror republish, download, display, transmit or distribute all or any portion of the Occupop web application and /or Documentation available in any form or media or by any means;
(b)attempt to de-compile, reverse, compile, disassemble, reverse engineer or otherwise reduce to human perceivable form all of any part of the Occupop web application;
(c)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 Documentation; or
(d)attempt to obtain, or assist third parties in obtaining access to the Services and/or the Documentation, other than as provided for under Clause 12.
13. Force Majeure
13.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement, that obligation will be suspended for the duration of the Force Majeure Event.
13.2 A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must:
(a) promptly notify the other;and
(b) inform the other of the period for which it is estimated that such failure or delay will continue.
13.3 A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
14. General provisions
14.1 This Agreement is made only in the English language. If there is any conflict in meaning between the English language version of this Agreement and any version or translation of this Agreement in any other language, the English language version shall prevail. Each document and communication referred to in this agreement or to be delivered under it shall be in the English language or, if not, accompanied by an English translation of it, certified as accurate by an officer of the party issuing that document or communication; and in the case of conflict between English language version and any other version, the English language version shall prevail.
14.2 The provisions of Clauses 7, 8, 9, 10, 11, 14 and 15 shall survive the termination of this Agreement however arising, and shall continue to bind the relevant party or parties without limit in time.
14.3 Termination of this Agreement (however arising) shall not affect any rights of the parties accrued up to the date of termination.
14.4 Client permits Service Provider to use of its name and logo in relation to the promotion of the Services.
14.5 This Agreement shall be governed by and construed in accordance with the laws of Ireland.
14.6 If any dispute, question or difference arises between the parties out of or in connection with this Agreement (other than one arising out of or in connection with an alleged breach of Clause 9.1, in respect of which the party alleging the breach elects to issue proceedings in the Irish courts), then any party may give notice to the other requiring the dispute or difference concerned to be referred to arbitration, whereupon the dispute or difference concerned shall be, and is hereby, referred to the arbitration of a person to be agreed upon by the parties or, in default of agreement, appointed by the President for the time being of the Law Society of Ireland upon the application of either party, or in the event of his being unwilling or unable to do so, by the next senior officer of the Law Society of Ireland who is willing and able to make the appointment. The provisions of this Clause with regard to the appointment of the arbitrator shall apply also to the appointment (whether by agreement or otherwise) of any replacement arbitrator where the original arbitrator (or any replacement) has been removed by order of the High Court, or refuses to act, or is incapable of acting, or dies. Every such arbitration shall be subject to the provisions of the Arbitration Acts 1954 to 1998. Unless otherwise agreed in writing between the parties, every such arbitration shall take place in Dublin,Ireland.
14.7 Each of the parties irrevocably agrees that the courts of Ireland shall have exclusive jurisdiction to hear and determine any suit, action or proceedings, and to settle any dispute, question or difference arising out of or in connection with an alleged breach of Clause 9.1 in respect of which the party alleging the breach elects to issue proceedings in the Irish courts and, for those purposes, each party irrevocably submits to the jurisdiction of those courts.
14.7 Client will not assign the benefit of this Agreement without the written consent of Service Provider.
14.8 If the whole or any part of a provision of this Agreement is or becomes illegal, invalid or unenforceable in any jurisdiction, that will not affect the legality, validity or enforceability in that jurisdiction of the remainder of the provision in question or any other provision of this Agreement; or the legality, validity or enforceability in any other jurisdiction of that or any other provision of this Agreement.
14.9 Each of the rights of each party under this Agreement may be exercised as often as is necessary, is cumulative and not exclusive of any other rights which that party may have under this Agreement, law or otherwise; and may be waived only in writing and specifically. Delay by a party in exercising,or the non-exercise by a party of, any such right will not constitute a waiver of that right.
14.10 This Agreement constitutes the sole and entire agreement between the parties in relation to its subject matter, and supersedes all prior written and oral arrangements, understandings,representations, warranties and agreements between them in that regard (if any).
14.11 Client shall at all times use an official company email address to access the Service. Failure to use such an address may result in termination of the Agreement at the discretion of Service Provider.
15.1 In this Agreement:
“Account” means an account enabling an Authorised User to access and use the Services, including both the administrators accounts and user accounts;
“Authorised User”means those employees, agents and independent contractors of Client who are authorised by Client to use the Services and the Documentation as described in Clause 12.1;
“Breach of Duty” means the breach of any obligation or duty to take reasonable care or exercise reasonable skill which arises from the express or implied terms of a contract or under common law (but not any stricter duty);
“Conditions” means these terms and conditions and any amendments to these Conditions from time to time;
“Contract Period”means the period specified in that regard on the Start Date.
“Confidential Information” means, in relation to a party,information (in whatever form communicated or recorded) belonging or relating to that party, its business affairs or activities which is not in the public domain 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 in writing), or (c) due to its character or nature, a reasonable person in a like position to its recipient and under like circumstances would treat as confidential; other than any such information which: (i) was, at the time of receipt, published or other wise generally 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 possession at the time of receipt, without any restrictions on its disclosure; or (iv) the recipient 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 obligation of confidentiality for the benefit of the disclosing party or (vi) is required by 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 the requirement, and at the other party’s request and cost, assists it in opposing any such disclosure;
“Data Protection Acts” Data Protection Acts 1988 - 2018 and the General Data Protection Regulation (EU 2016/79), any other applicable law or regulation relating to the Processing of Personal Data and to privacy (including the E-Privacy Directive), as such legislation shall be amended, revised or replaced from time to time, including by operation of the GDPR (and laws implementing or supplementing the GDPR). “Documentation” means the documentation for the Services produced by Service Provider and delivered or made available by Service Provider to Client;
“Force Majeure Event” means an event,or series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks or infections, power failures industrial 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 a person under or in respect of any patent, trademark, service mark, registered design, drawing, utility model, design right, copyright, data base right, trade secret, confidential information, technical information, know-how, business or trade name, goodwill and all other intellectual property rights of a similar or corresponding nature in any part of the world, whether registered or not, or capable of registration or not, and including all applications and the right to apply for any of the foregoing;
“Liability” means liability for breach of contract, Breach of Duty,misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and for the purposes of this definition, all references to ‘this Agreement’ shall be deemed to include any collateral contract);
“Loss” means any claim, suit, proceeding, judgement, loss, liability, cost, expense, fee,penalty or fine;
“Platform” means the platform managed by Service Provider to provide the Services, including the application and database software for the Services, the system and software used to provide the Services, and the computer hardware on which that application, database, system and software is installed;
“Relevant Personal Data” means personal data (as defined in the Data Protection Acts) delivered to Service Provider by or at the direction of Client, or collected by Service Provider, for the purposes of this Agreement;
“Services” means the services provided by Service Provider to Client under this Agreement, being a cloud-based applicant tracking system that facilitates and manages the hiring process all from the comfort of one platform, requiring no download or installation, and including the Support Services when required;
“Support Services” means the provision of 24 hour access to a help desk, online support during core building houses,and a dedicated account manager for additional phone support and training for Master and Custom plans;
“Start Date” has the meaning as set out in Clause 2 herein; and
“User Subscriptions”means the user subscriptions purchased by Client which entitles the Authorised Users to access and use the Services and the Documentation in accordance with these Conditions.
15.2 In this Agreement, unless the contrary intention is stated, a reference to: (a) the singular shall include the plural and vice versa; (b) either gender includes the other; (c) a person shall be construed as a reference to any individual, firm or company, corporation,governmental entity or any association or partnership (whether or not having separate legal personality); (d) time shall be construed by reference to whatever time may from time to time be in force in Ireland; (e) a ‘Clause’ is to a clause of these terms and conditions (f) a statute, by-law, regulation,delegated legislation or order is to the same as amended, modified or replaced from time to time, and to any by-law, regulation, delegated legislation or order made thereunder; (g) ‘including’ means comprising, but not by way of limitation to any class, list or category; (h) ‘writing’ shall include a reference to any electronic mode of representing or reproducing words invisible form (and ‘written’ shall be construed accordingly); and (i) ‘business day’ shall be construed as a reference to a day (other than a Saturday or Sunday) on which the banks are generally open for business in Dublin, Ireland and where Client has its principal place of business; and
15.3 Headings are to be ignored in the construction of this Agreement.