1.1 Be Applied Ltd ("Applied") has developed a customisable cloud computing platform ("Platform") which it makes available to a hiring manager (a “Customer”) via the internet for the purpose of developing a bespoke online application process (the "Services").
1.2 The Customer has placed an order ("Order") for the Services which has been accepted by Applied. The Order incorporates these terms and conditions and together is the "Agreement".
1.3 You indicate your agreement to this Agreement by clicking a button indicating your acceptance of this Agreement 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 the 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 Applied shall provide the Services in accordance with the terms of this Agreement. Applied shall make the Platform available to the Customer, who may then make it available to job applicants ("Authorised Users").
2.2 The Customer shall:
(a) use the Platform solely for its own internal business purposes 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.
3.1 The Customer shall pay to Applied the charges specified in the Order for the Services ("Charges"):
(a) within 30 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. A Customer’s Subscription will automatically renew at the end of each Subscription Period unless a Customer cancels auto-renewal through its online account management page, or by contacting Applied’s support team. A Subscription may be cancelled at any time, but will continue until the end of the Subscription Period.
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 price 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 are and shall remain the sole property of Applied or its third party licensors. The Customer has no rights to, or in, patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Platform.
4.3 The Customer grants to Applied an irrevocable, royalty-free, worldwide licence in any Intellectual Property Rights arising from or created, produced or developed in the course of using the Platform (including, but not limited to, the wording of questions in the online application form and Customer logos, brand names and insignia).
5.2 Applied does not guarantee that the Platform will be secure or free from bugs or viruses. The Customer is responsible for configuring the Customer information technology, computer programmes and platform in order to access our site. The Customer should use the Customer’s own virus protection software.
5.3 The Customer must not misuse the Platform by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. The Customer must not attempt to gain unauthorised access to the Platform, the server on which the Platform is stored or any server, computer or database connected to the Platform. The Customer must not attack the Platform via a denial-of-service attack or a distributed denial-of service attack.
5.4 Applied warrants that is will provide access to the Platform with reasonable skill and care. This warranty shall be subject to the Customer complying with its obligations in clause 2.3.
6.1 In this clause 6, "Personal Data", "Data Controller" and "Data Processor" shall have the meanings ascribed to them in the Data Protection Act 1998, or in any legislation which substantially amends, supersedes or replaces the same.
6.2 The Customer shall own all right, title and interest in and to all of the data inputted by the Customer, and Authorised Users for the purpose of using the Platform or facilitating the Customer's use of the Platform ("User Data") and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User Data and compliance with the Data Protection Act 1998, including informing Authorised Users of, and where required, securing necessary consents to, processing of their Personal Data as anticipated in this Agreement.
6.3 Applied will process any Personal Data comprised within the User Data on the Customer's behalf as a Data Processor, strictly in accordance with Customer's instruction and subject to adoption of technical and organisational measures required by Customer to protect against unauthorised or unlawful processing of the Personal Data or its accidental loss, destruction or damage..
6.4 In the event of any loss or damage to User Data, the Customer's sole and exclusive remedy shall be for Applied to use reasonable commercial endeavours to restore the lost or damaged User Data from the latest back-up of such User Data maintained by Applied. Applied shall not be responsible for any loss, destruction, alteration or disclosure of User Data caused by any third party
6.5 The Customer permits Applied to keep a copy of the User Data for use by Applied and any of its group companies (meaning its subsidiaries or holding companies from time to time and any subsidiary of any holding company from time to time) for research and related commercial purposes ("Copy Data"). Applied shall own all right, title and interest in and to all of the Copy Data and shall be the Data Controller of the Copy Data. The foregoing permission shall be subject to Applied securing consent of Authorised Users to the collection and processing of the Copy Data for the purposes outlined above.
7.1 In this clause 7, "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.
7.2 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.
7.3 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 7.
7.4 These obligations of confidentiality in 7.1 to 7.3 above shall continue after termination of this Agreement.
8.1 Subject to clauses 8.2 and 8.3, Applied’s total liability for loss or damage arising in connection the Platform and its obligations under this Agreement shall be limited to the aggregate Charges paid by Customer in the six months preceding the date of the relevant breach.
8.2 Subject to clause 8.3, Applied expressly excludes liability for indirect and consequential loss or damage, including but not limited to loss or damage to data or to other equipment or property (whether or not the same may be in Applied's care, custody or control) or for loss of profit, business, revenue, goodwill or anticipated savings.
8.3 Applied does not exclude liability for death or personal injury to the extent that the same arises directly from the negligence of Applied or its employees.
9.1 The Customer shall defend, indemnify and hold harmless Applied and any of its group companies, affiliates, officers, employees, agents, suppliers and licensors against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer's use of the Platform or the Services or this Agreement.
9.2 The Customer shall be responsible for use of the Platform in accordance with legislation and laws affecting the Customer and shall indemnify Applied and any of its group companies, affiliates, officers, employees, agents, suppliers and licensors against all liabilities, claims and expenses arising as a result of any breach of this clause 9.
This Agreement shall commence on the date set out in the Order and shall continue for the duration specified in the Order or where a Customer has placed an Order on a Subscription basis, it shall continue until terminated in accordance with clause 3.2.
11.1 Applied may terminate this Agreement by giving the Customer 60 days' written notice.
11.2 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;
11.3 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.
11.4 Applied may also suspend providing the Services to the Customer if we are investigating suspected misconduct by the Customer.
11.5 Immediately following termination of this Agreement Customer shall cease using the Platform and, if Applied so requires, delete from all computer hardware and storage media and otherwise destroy copies of all documentation, Platform data and other material including Confidential Information that Applied has made available to Customer save for the User Data for which the Customer shall be entitled to access. Customer shall warrant that it has done these acts within thirty (30) days of termination or the date on which Applied requires Customer to delete or destroy such items (as applicable). Customer shall also pay to Applied any Charges that are outstanding.
11.6 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.
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.
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.
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.
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.
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.
The parties hereby agree that the Agreement and any disputes arising out of or in connection with the Agreement shall be construed in accordance with the laws of England and Wales. Customer accepts the exclusive jurisdiction of the courts of England and Wales.