1.1. Be Applied Ltd ("Applied") has developed a Job Description Analysis Tool ("Platform") which it makes available to a hiring manager (a “Customer”) via the internet for the purpose of enabling review of job advertisements and other recruitment materials (the "Services").
1.2. The Customer has placed an order ("Order") for the Services which has been accepted by Applied. Each Order entered into by the Customer shall form a separate agreement, incorporating these Terms and Conditions (“this Agreement”).
1.3. You indicate your agreement to this Agreement by clicking a button when placing your Order, by executing a document that incorporates this Agreement, or by using the Services.
1.4. If you will be using the Services on behalf of an organisation, you agree to this Agreement on behalf of that organisation and you represent that you have the authority to do so. In such case, “you” and “your” and “Customer” will refer to that organisation.
1.5. This Agreement supersedes any arrangements made or existing between the parties and constitutes the entire understanding between the parties. For the avoidance of doubt, any implied terms and warranties shall (to the extent permitted by law) be excluded from this Agreement.
2.1. Upon Applied’s acceptance of the Order either by email or by countersignature of an order form (“Order Acceptance”) and subject to the terms of this Agreement, Applied grants the Customer a non-exclusive, non-transferable, personal right to use the Services during the term of this Agreement for the purposes set out in clause 2.2 below, in accordance with the Subscription limits specified in the Order. Applied shall provide the Services in accordance with the terms of this Agreement.
2.2. The Customer shall: (a) use the Platform solely for its own internal business purposes for its own recruitment of personnel in accordance with the user arrangements specified in the Order; (b) not otherwise modify, enhance, copy, redistribute, disseminate, sell, licence, reverse engineer, decompile or reproduce the Platform. In particular (but without limitation) the Customer shall not use the Platform in connection with the operation of any bureau service or outsourced service offering to any third party without the prior written consent of Applied; and (c) not access all or any part of the Platform in order to build a product or service which competes with the Platform or the Services.
2.3. Applied may make available to the Customer a limited right to use the Service on a limited free trial basis (“Free Trial Services”).
2.4. The Customer shall ensure that only those of its employees and individual freelance independent contractors authorised by it to have access to the Services (“Authorised Users”) use the Services and that such use is at all times in accordance with this Agreement.
2.5. The Customer shall:
2.5.1. be liable for the acts and omissions of the Authorised Users as if they were its own;
2.5.2. only provide Authorised Users with access to the Services via the Customer’s authentication credentials provided by Applied and shall not provide access to (or permit access by) anyone other than an Authorised User; and
2.6. The Customer warrants and represents that it, and all Authorised Users and all others acting on its or their behalf shall, keep confidential and not share with any third party (or with other individuals except those with administration rights at the Customer organisation as necessary for use of the Services) their password or access details for the Services.
2.7. The Customer shall ensure that Authorised Users at all times comply with all provisions of this Agreement. Any act or omission of an Authorised User in respect of the Services shall be deemed to be an act or omission of the Customer.
2.8. If any password has been provided to or obtained by an individual that is not an Authorised User, the Customer shall, without delay, disable any such passwords and notify Applied immediately.
2.9. The Customer shall comply (and shall ensure all Authorised Users comply) with all applicable laws, rules, and regulations (including applicable data protection laws) that apply to the Services.
2.10. Clauses 2.5 to 2.9 (inclusive) shall survive termination or expiry of this Agreement.
3.1. The Customer shall pay to Applied the charges specified in the Order for the Services ("Charges"): (a) within 14 days from receipt of an invoice from Applied; or (b) in accordance with the payment terms and billing method specified in the Order or selected by the Customer through its account management page.
3.2. Where a Customer places an Order on a subscription basis (a “Subscription”) a Customer will be billed in advance on a recurring, periodic basis (each a "Subscription Period”). The length of a Subscription Period will depend on what subscription plan is selected when placing an Order.
3.3. Failure to comply with these payment terms shall entitle Applied to: (a) charge interest on the outstanding amount at the rate of 2% above the Barclays Bank rate from time to time per month (or the highest rate allowed by the applicable law, whichever is the lower) from the due date until the outstanding invoiced Charges or outstanding part thereof is paid; and/or (b) suspend access to the Platform.
3.4. Charges are exclusive of all current and future taxes and fees, all of which the Customer will be responsible for and will pay in full.
3.5. All Charges are non-refundable, except as provided in this Agreement or when required by law.
4.1. "Intellectual Property Rights" means all patents, copyright, design rights, domain names, registered designs, trade and service marks (registered and unregistered), rights in know-how, rights in relation to databases, trade secrets, rights in confidential information and all other intellectual property rights throughout the world including: (a) all registrations and pending registrations relating to any such rights and the benefit of any pending applications for any such registrations; and (b) all reversions, extensions and renewals of any such rights.
4.2. The Customer acknowledges that all of the Intellectual Property Rights subsisting in the Platform and the Services are and shall remain the sole property of Applied or its third party licensors. Except as set out in this Agreement, the Customer has no rights to, or in, any Intellectual Property Rights in respect of the Platform or the Services.
4.3. The Customer grants to Applied a perpetual, irrevocable, royalty-free, worldwide licence under any Intellectual Property Rights in any job advertisements and other recruitment materials in respect of which the Customer uses the Services (“Customer Recruitment Material”) to use the Customer Recruitment Material to gain insights into usage patterns by users of the Services, develop new features or improve existing features, advise users and prospective users on potential improvements to recruitment practices, and to market and sell the Services, and authorise others to do the same. To be clear, any disclosure of the Customer Recruitment Material to any third party will not identify the Customer.
4.4. The Customer grants to Applied a royalty-free, worldwide, irrevocable licence for the term of this Agreement under any Intellectual Property Rights any logo or other trade mark made available to Applied identifying the goods and services of the Customer (“Customer Marks”) for the purposes of (i) providing the Services; and (ii) identifying the Customer as Applied’s customer on Applied’s website and its sales and marketing materials. Any further use of the Customer Marks by Applied shall be subject to the Customer’s prior consent. Applied acknowledges that all goodwill generated through Applied’s use of any of the Customer Marks will accrue to the Customer’s benefit and Applied hereby assigns and will assign to the Customer any and all goodwill generated through Applied’s use of any of the Customer Marks, without payment or other consideration of any kind to Applied.
4.5. The Customer agrees that all recommendations, comments and suggestions made by it to Applied in respect of the Services will be deemed non-confidential and Applied shall own all rights to use and incorporate them into the Services, without payment to the Customer.
5.1. Subject to the remainder of this clause 5, Applied warrants that the Services shall operate materially in accordance with the description of the Services’ features and functions (“Service Description”) provided or made available by Applied to the Customer when used in accordance with this Agreement under normal use and normal circumstances during the relevant Subscription Period.
5.2. The Customer acknowledges that clause 5.1 does not apply to Free Trial Services. Free Trial Services are provided ‘as is’ and without warranty to the maximum extent permitted by law. Applied may withdraw access to Free Trial Services at any time without any liability to the Customer.
5.3. The Services may be subject to delays, interruptions, errors or other problems resulting from use of the internet or public electronic communications networks used by the parties or third parties. The Customer acknowledges that such risks are inherent in cloud services and that Applied shall have no liability for any such delays, interruptions, errors or other problems.
5.4. If there is a breach of any warranty in clause 5.1 Applied shall at its option: use reasonable endeavours to repair or replace the impacted Services within a reasonable time or (whether or not it has first attempted to repair or replace the Services) refund the Charges for the impacted Services which were otherwise payable for the period during which Applied was in breach of any such warranty (provided such period is at least 2 consecutive days). To the maximum extent permitted by law, clause 9 (Termination) and this clause 5.4 sets out the Customer’s sole and exclusive remedy (however arising, whether in contract, negligence or otherwise) for any breach of any of the warranties in clause 5.1.
5.5. The warranties in clause 5.1 are subject to the limitations set out in clause 7 and shall not apply to the extent that any error in the Services arises as a result of:
5.5.1. incorrect operation or use of the Services by the Customer or any of its Authorised Users (including any failure to follow the Service Description or failure to meet minimum specifications);
5.5.2. use of the Services other than for the purposes for which they are intended;
5.5.3. any act by any third party (including hacking or the introduction of any virus or malicious code);
5.5.4. any breach of this Agreement by the Customer (or by any Authorised User).
5.6. The Customer acknowledges that no liability or obligation is accepted by Applied (howsoever arising whether under contract, tort, in negligence or otherwise) that the Services shall meet the Customer’s individual needs, whether or not such needs have been communicated to Applied or that the operation of the Services shall not be subject to minor errors or defects.
5.7. Other than as set out in this clause 5, and subject to clause 7.6, all warranties, conditions, terms, undertakings or obligations whether express or implied and including any implied terms relating to quality, fitness for any particular purpose or ability to achieve a particular result are excluded to the fullest extent allowed by applicable law.
5.8. Without limitation, Applied shall not have any obligation to ensure that the Services comply with any laws or regulations which apply solely to specific commercial or other activities (such as recruitment business, recruitment agency, insurance, legal advice or other professional services) or which apply solely to a specific commercial or non-commercial sector (or part thereof) (such as the recruitment, HR, public, legal, accountancy, actuarial, insurance, banking or financial service sectors).
6.1. In this clause 6, "Confidential Information" means all information disclosed (whether in writing, orally or by another means and whether directly or indirectly) by Applied to Customer whether before or after the date of this Agreement including, but not limited to, information relating to the Platform or Services, or a user identification code or password for the Platform, or any of Applied's other operations, processes, plans or intentions, product information, pricing, know-how, design rights, trade secrets, market opportunities and business affairs unless Applied has already placed such information in the public domain.
6.2. Customer shall not use, copy, adapt, alter, disclose or part with possession of any Confidential Information except as necessary for the sole purpose of receiving the Services and otherwise exercising its rights and performing its obligations under this Agreement. In particular but without limitation, Customer shall only use Confidential Information for its own internal business purposes and shall not disclose or make any such Confidential Information available for any reason to any other person, firm, company or organisation.
6.3. Customer shall ensure that its officers, employees and sub-contractors who have, or may have, access to Confidential Information are made aware of and comply with the obligations of confidentiality in this clause 6.
6.4. These obligations of confidentiality in 6.1 to 6.3 above shall continue after termination of this Agreement.
7.1. The extent of Applied’s liability under or in connection with this Agreement (regardless of whether such liability arises in tort, contract or in any other way and whether or not caused by negligence or misrepresentation or under any indemnity) shall be as set out in this clause 7.
7.2. Subject to clause 7.6, Applied’s aggregate liability in respect of Free Trial Services (howsoever arising under or in connection with this Agreement) shall not exceed £50.00 (fifty pounds sterling).
7.3. Subject to clause 7.6, Applied’s total aggregate liability howsoever arising under or in connection with this Agreement shall not exceed an amount equal to the Charges paid to Applied in the 12-month period immediately preceding the first incident giving rise to any claim under this Agreement. This clause 8.3 does not apply to Free Trial Services.
7.4. Subject to clause 7.6, Applied shall not be liable for consequential, indirect or special losses.
7.5. Subject to 7.6, Applied shall not be liable for any of the following (whether direct or indirect):
7.5.1. loss of profit, loss of revenue;
7.5.2. destruction, loss of use or corruption of data;
7.5.3. loss of savings, discount or rebate (whether actual or anticipated); and/or
7.5.4. harm to reputation or loss of goodwill;
7.5.5. loss of anticipated savings.
7.6. Notwithstanding any other provision of this Agreement, Applied’s liability shall not be limited in any way in respect of death or personal injury caused by negligence, fraud or fraudulent misrepresentation, or any other losses which cannot be excluded or limited by applicable law.
7.7. This clause 7 shall survive the termination or expiry of this Agreement.
8.1. This Agreement shall come into force on Order Acceptance and, unless terminated earlier in accordance with its terms, shall continue for the duration of the period specified in the Order (“Subscription Period”) and any renewals thereof under this clause 8, after which it shall automatically expire.
8.2. Subject to clause 8.4, on expiry of the Subscription Period, the Subscription Period shall continue and automatically renew for a further period of twelve months (“first Renewal Date”) and thereafter renew for a further period of twelve months on each anniversary of the first Renewal Date (each of the first Renewal Date and each such anniversary being a “Renewal Date”). This clause 8.2 shall not apply in respect of Free Trial Services (which shall not renew).
8.3. If either party wishes for the Subscription Period to expire on the next Renewal Date, it may cause the Services to expire on that Renewal Date by notice provided such notice is served by email at least 14 days prior to that Renewal Date. If notice is not served within the timeframes set out in this clause 8.4, the Services shall renew at the next Renewal Date in accordance with clause 8.2.
8.4. Applied shall be entitled to increase the Charges from the next Renewal Date by notice to the Customer provided that Applied shall give notice of such change no less than 28 days prior to the Renewal Date.
9.1. Applied may terminate this Agreement by giving the Customer 60 days' written notice.
9.2. Either party may terminate this Agreement immediately by notice in writing to the other party ("Breaching Party") if any of the following events occurs: (a) the Breaching Party commits any material breach of any term of this Contract which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified to do so; (b) the Breaching Party ceases, or threatens to cease, to carry on business; or (c) the Breaching Party 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), 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.
9.3. Applied may terminate this Agreement immediately: (a) if there is a change of control (as defined in section 1124 of the Corporation Tax Act 2010) in Customer; or (b) the Customer fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 10 days after being notified to make such payment.
9.4. Applied may also suspend providing the Services to the Customer if we are investigating suspected misconduct by the Customer.
9.5. Immediately following termination of this Agreement Customer shall cease using the Platform.
9.6. Termination shall not affect any of the terms of this Agreement expressed to survive or operate in the event of the termination and shall not prejudice the rights of either party in respect of any breach or in respect of any monies payable for any period prior to termination.
10.1. Applied shall be under no liability to Customer in respect of anything which, apart from this provision, may constitute a breach of this Agreement arising by reason of circumstances beyond the control of Applied.
10.2. Failure or neglect by Applied to enforce at any time any part of this Agreement shall not be construed nor shall be deemed to be a waiver of Applied’s rights hereunder nor in any way affect the validity of the whole or any part of this Agreement nor prejudice Applied’s rights to take subsequent action.
10.3. In the event that any or any part of this Agreement shall be determined by any competent authority to be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining terms and conditions which shall continue to be valid and enforceable to the fullest extent permitted by law.
10.4. This Agreement shall not be assigned by Customer without the prior written consent of Applied. Applied reserves the right to assign any or all of its rights under this Agreement.
10.5. A person who is not a party to this Agreement has no rights under the Contracts (Rights of Third Parties) Act 1999 or equivalent legislation outside England and Wales to enforce any term of this Agreement.
10.6. This Agreement and any dispute or claim arising out of, or in connection with, it, its subject matter or formation (including non-contractual disputes or claims) shall be governed by, and construed in accordance with, the laws of England and Wales. The parties irrevocably agree 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, its subject matter or formation (including non-contractual disputes or claims).
11.1 In this Agreement, unless otherwise stated:
11.1.1. the clause, paragraph, schedule or other headings in this Agreement are included for convenience only and shall have no effect on interpretation;
11.1.2. any words that follow ‘include’, ‘includes’, ‘including’, ‘in particular’ or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
11.1.3. a reference to ‘writing’ or ‘written’ includes any method of reproducing words in a legible and non-transitory form (including email);
11.1.4. a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.