Terms and Conditions
View our Terms and Conditions of Supply of Services
Last updated: 14th May 2018
These Conditions (as defined below) form the basis on which CiiVSOFT Limited (a company registered in England and Wales under company number 09061018, whose registered office is at The Innovation Centre, Keckwick Lane, Sci-Tech Daresbury, Daresbury, Cheshire WA4 4FS) (CiiVSOFT, we, us) supplies services directly, via our resellers or via our website www.ciivsoft.com (our site). By placing an order for Services (whether directly, via one of our resellers, via our website, by accepting our quotation or otherwise) (Order), you agree to these Conditions and any documents referred to within the Conditions, which, together with your Order, will constitute the agreement (Agreement) between us and the organisation or individual named in the Order (Customer, you). If you are acting for a business or organisation in agreeing to these Conditions, you are agreeing to these Conditions on behalf of that business or organisation.
Please read these Conditions carefully before ordering any Services from us. By ordering or using any of our Services you agree to be bound by these Conditions.
You should print a copy of these Conditions for future reference.
1. Definitions and interpretations
1.1. The definitions and rules of interpretation in this clause apply in this Agreement.
Authorised Users means those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services and the Documentation and are named as such in the Order or subsequently agreed in writing pursuant to clause 6;
Business Day means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
Conditions means these terms and conditions, or any updated version that may be in force at the relevant Effective Date;
Confidential Information means all technical or commercial information, know-how, specifications, inventions, processes or initiatives which are of a confidential nature relating to a party or its business, clients, suppliers, finances or strategy;
Controller or Data Controller shall have the meaning set out in the Data Protection Legislation;
Customer Data means the data inputted by the Customer, Authorised Users or CiiVSOFT on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services;
Customer Materials means all data, documents, information, items and materials in any form, including any Customer Data, whether owned by the Customer or a third party, which are provided by the Customer to CiiVSOFT in connection with the Services or posted onto the Services by an Authorised User or the Customer;
Data Protection Law means:
(a) prior to its repeal, the Data Protection Act 1998; and
(b) from 25 May 2018, the GDPR and any UK statute which implements any provisions of the same;
Data Protection Legislation means all applicable data protection and privacy legislation, regulations, guidance and codes of practice, including:
(a) the Data Protection Law and the Privacy and Electronic Communications (EC Directive) Regulations;
(b) any secondary legislation pursuant to the Data Protection Law;
(c) any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK in respect of any of the foregoing; and
(d) any guidance or codes of practice issued by Working Party 29, the European Data Protection Board or the Information Commissioner from time to time (all as amended, updated or re-enacted from time to time);
Data Subject shall have the meaning set out in the Data Protection Law;
Documentation means the document(s) made available to the Customer by CiiVSOFT from time to time, which sets out a description of the Services and user instructions for the Services;
Effective Date means the date described in clause 2.2;
GDPR means Regulation (EU) 2016/679 (or the General Data Protection Regulation);
Initial Subscription Term means the initial term of the Agreement stated in the relevant Order Confirmation and starting on the Effective Date;
Insolvency Event means:
(a) a 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;
(b) a party suspends, or threatens to suspend, or ceases or threatens to cease to carry on all or a substantial part of its business;
(c) a party fails to pay any overdue amount in connection with this Agreement within 14 days of written notice to do so; or
(d) a party’s financial position deteriorates to such an extent that in the terminating party’s opinion the other party’s capability adequately to fulfil its obligations under the Agreement has been placed in jeopardy;
Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
Licence Credits means individual credits purchased to use the Services on a ‘per credit’ transaction basis;
Live Date means the date the Set Up Services have been completed, usually 30 days from the Effective Date unless otherwise agreed in writing between CiiVSOFT and the Customer or, if no Set Up Services are to be provided, it shall have the same meaning as the Effective Date;
New Business Proposal Document means the document issued by CiiVSOFT to a Customer by email or otherwise in writing, detailing the proposed nature and cost of Services to be provided to the Customer;
Normal Business Hours means 9.00am to 5.30pm local UK time, each Business Day;
Order Confirmation means the form issued by CiiVSOFT to a Customer by email or otherwise in writing, confirming its acceptance of an Order;
Personal Data shall have the meaning set out in the Data Protection Law;
Processing shall have the meaning set out in the Data Protection Law (and Process and Processed shall be construed accordingly);
Processor or Data Processor shall have the meaning set out in the Data Protection Law;
Renewal Period means the period described in clause 16.1;
Services means the services (including any Set Up Services) as detailed in the Order Confirmation, or otherwise agreed in writing, and provided by CiiVSOFT to the Customer via www.ciivsoft.com or any other website notified to the Customer by CiiVSOFT from time to time;
Set Up Fees means the fees for providing the Set Up Services;
Set Up Services means any design, configuration and testing services to ensure the customer’s systems are suitable for CiiVSOFT’s services;
Software means the online software platform and/or applications provided by CiiVSOFT as part of the Services;
Subscription Fees means the subscription fees payable by the Customer to CiiVSOFT for the User Subscriptions or Licence Credits, as set out in the Order Confirmation or on the New Business Proposal Document;
Subscription Term means the Initial Subscription Term together with any subsequent Renewal Periods;
Supervisory Authority means the Information Commissioner’s Office in the United Kingdom and/or such other supervisory body as may be appropriate to the Processing and/or Data Subjects in question;
Support Services Policy means CiiVSOFT’s policy for providing support in relation to the Services which may be made available from time to time. Any such policy will be made available at www.ciivsoft.com or such other website address as may be notified to the Customer from time to time;
User Subscriptions means the user subscriptions purchased by the Customer, which entitle Authorised Users to access and use the Services and the Documentation in accordance with these Conditions; and
Virus means any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
(a) References to clauses are to the clauses of these Conditions. Clause headings shall not affect the interpretation of these Conditions.
(b) A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality). A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
(c) Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular and a reference to one gender shall include a reference to the other genders.
(d) A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time and shall include all subordinate legislation made under it from time to time.
(e) Any phrase introduced by the terms including, include, in particular, for example or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms.
(f) A reference to writing or written includes email but not faxes.
2.1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.
2.2. An Order shall only be deemed to be legally binding on CiiVSOFT and the Customer once CiiVSOFT accepts the Order by either:
2.2.1. providing the Customer with the Order Confirmation; or
2.2.2. by starting to provide the Services, whichever happens first (Effective Date).
2.3. Any samples, drawings, descriptive matter or advertising issued by CiiVSOFT, and any descriptions or illustrations contained in CiiVSOFT’s brochures or on our site, are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Agreement or have any contractual force.
2.4. These Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2.5. If CiiVSOFT provides the Customer with a quotation or proposal, it shall not constitute an offer until an Order Form has been placed and accepted in accordance with these Conditions. Any quotation or proposal is only valid for a period of 20 Business Days from its date of issue.
2.6. CiiVSOFT may update the Services from time to time. If we change the Services in a manner that materially reduces their functionality, we will inform Customer via the email address associated with the account and the Customer will have the option to terminate the Agreement on 14 days’ written notice.
3.1. CiiVSOFT shall, in consideration of the Customer paying the Subscription Fees, provide the Services during the Subscription Term.
3.2. CiiVSOFT may, as part of the Services, provide the Customer with customer support services during Normal Business Hours in accordance with the Support Services Policy which may be in effect at such time.
3.3. CiiVSOFT shall have the right to make any changes to the Services which are necessary to comply with any applicable law, or which do not materially affect the nature or quality of the Services.
3.4. CiiVSOFT will endeavour to provide the Customer with help and support for all defects and issues with the Services but certain issues are outside of CiiVSOFT’s influence or control, or may not be covered within any Support Services Policy. In particular, help and support will not be provided, and CiiVSOFT will not otherwise have any liability, if: (i) the Customer is in breach of the Agreement; or (ii) any defect or issue arises directly or indirectly from:
3.4.1. the Customer’s failure, error, negligence or breach of the Agreement;
3.4.2. the Customer’s introduction of any Viruses or any cookies, web-tags, code or script which have not been provided by CiiVSOFT;
3.4.3. any defect or issue with any Customer websites, databases, equipment or systems;
3.4.4. any Customer Materials; or
3.4.5. any changes, modifications or repairs to the Services which are not undertaken or authorised by CiiVSOFT, or any damage which the Customer causes to the Services.
CiiVSOFT may still provide support in relation to such issues for an additional fee.
3.5. Notwithstanding anything to the contrary in this Agreement, in the event of any: (a) use of the Services that does or could disrupt the Services, other Customers’ use of services or the infrastructure used to provide the Services; and/or (b) unauthorised third party access to the Services using the Customer’s account, CiiVSOFT may immediately suspend the Customer’s use of or access to the Services. In such circumstances, CiiVSOFT will make commercially reasonable efforts suspend access only so far as needed in the circumstances.
3.6. CiiVSOFT may at its sole discretion offer trial periods for use of the Services, which shall be agreed with the Customer in writing from time to time but in no circumstances shall such period last for more than 14 days (Trial Services).
3.7. The Trial Services shall:
3.7.1. be subject to withdrawal at any time and without notice at CiiVSOFT’s sole discretion;
3.7.2. only be available to one Authorised User and the account for such Authorised User cannot be shared amongst multiple users; and
3.7.3. be subject to these Conditions for their duration.
3.8. CiiVSOFT reserves the right not to provide customer support services to customers of Trial Services.
3.9. If the Customer wishes to upgrade the Trial Services to purchase a full subscription for the Services it may do so by submitting an Order and making the applicable payment in accordance with clause 10.
3.10. We shall use reasonable endeavours to meet any performance criteria and timescales that may be specified but any time for performance by us shall not be of the essence of this Agreement.
4. Set up and minimum requirement
4.1. If applicable, and in consideration of the Customer paying the Set Up Fees, CiiVSOFT will provide the Customer with an estimated Live Date for the Services and will use reasonable endeavours to complete the Set Up Services by the Live Date but, given the nature of technology platforms, there is always the possibility of unforeseen complexities with completing the Set Up Services, therefore CiiVSOFT cannot guarantee this estimated Live Date. CiiVSOFT will notify the Customer if there is likely to be any significant delay in providing the Set Up Services.
4.2. If the Customer delays in providing any information or assistance reasonably requested by CiiVSOFT this may result in a delay to the Live Date, for which the Customer shall be solely liable.
4.3. If the Customer fails to comply, or delays in complying, with any of its obligations under the Agreement, then CiiVSOFT may not be able to provide the Customer with the Services or it may impact upon or delay CiiVSOFT’s ability to do so (and in some situations CiiVSOFT may need to suspend the Services on written notice pending rectification of such non-compliance). In the event of any delays in provision of such assistance, CiiVSOFT may adjust any Live Date, timetable or delivery schedule as reasonably necessary and CiiVSOFT shall not be liable for any costs or losses incurred as a result of such delays (and the Customer shall promptly following written demand reimburse CiiVSOFT in respect of any costs or losses incurred as a direct result).
5. User subscriptions
5.1. Subject to the Customer purchasing the User Subscriptions in accordance with clause 6, and the Customer’s compliance with the remaining Conditions, CiiVSOFT hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
5.2. In relation to the Authorised Users, the Customer undertakes that:
5.2.1. the Authorised Users meet any eligibility requirements advised by CiiVSOFT to use the Services;
5.2.2. the maximum number of Authorised Users that it authorises to access and use the Services and/or the Documentation shall not exceed the number of User Subscriptions it has purchased at the relevant time;
5.2.3. it will not allow or suffer any User Subscription to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the prior Authorised User shall no longer have any right to access or use the Services and/or Documentation;
5.2.4. each Authorised User shall keep a secure password for his use of the Services and Documentation, that such password shall be changed no less frequently than monthly and that each Authorised User shall keep his password confidential;
5.2.5. it shall maintain a written, up-to-date list of current Authorised Users and provide such list to CiiVSOFT within 5 Business Days of CiiVSOFT’s written request at any time;
5.2.6. it shall permit CiiVSOFT, or CiiVSOFT’s designated auditor, to audit usage of the Services at reasonable times and on reasonable notice, in such a manner as not substantially to interfere with the Customer’s normal conduct of business;
5.2.7. if any of the audits referred to in clause 5.2.6 reveal that any password has been provided to any individual who is not an Authorised User then, without prejudice to CiiVSOFT’s other rights, the Customer shall promptly disable such passwords and CiiVSOFT shall not issue any new passwords to any such individual; and
5.2.8. if any of the audits referred to in clause 5.2.6 reveal that the Customer has underpaid Subscription Fees to CiiVSOFT then, without prejudice to CiiVSOFT’s other rights, the Customer shall pay to CiiVSOFT an amount equal to such underpayment (as calculated in accordance with CiiVSOFT’s standard price list from time to time) within 10 Business Days of the date of the relevant audit.
5.3. The Customer shall not during the course of its use of the Services access, store, distribute or transmit any:
5.3.1. Viruses; or
5.3.2. material that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property.
5.4. The Customer shall not:
5.4.1. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
(a) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Software and/or Documentation (as applicable) in any form or media or by any means (except to the extent expressly permitted under these Conditions); or
(b) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software;
5.4.2. access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation;
5.4.3. use the Services and/or Documentation to provide services to third parties;
5.4.4. subject to clause 19.7, license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit or make the Services and/or Documentation available to any third party except the Authorised Users;
5.4.5. attempt to gain access to CiiVSOFT’s servers or other equipment in order to disrupt, impair, overload or otherwise hinder or compromise the safety, security or privacy of any of the services CiiVSOFT provides to its other customers and users;
5.4.6. use any robot, spider, scraper or other technical means to access the Services or any content on the Services; or
5.4.7. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this clause 5.
5.5. CiiVSOFT reserves the right to update the provisions of clauses 5.3 and 5.4 at its sole discretion to address emerging threats to the Services or Software.
5.6. In the event of any breach of clause 5.3 or 5.4, CiiVSOFT reserves the right, without liability or prejudice to its other rights, to disable the Customer’s access to the Services (in whole or in respect of any Authorised User(s)) and, if the matter cannot be resolved to CiiVSOFT’s satisfaction, it may treat the breach(es) as irremediable and terminate the Agreement pursuant to clause 16.3.
5.7. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, shall promptly notify CiiVSOFT.
5.8. Certain Services may enable Customer to specify Authorised Users as administrators through settings specified within the software for those Services. Administrators may have the ability to access, disclose, restrict or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict, or terminate access to Services accounts. CiiVSOFT’s responsibilities do not extend to the internal management or administration of the Services. Customer is responsible for managing access to administrator accounts.
5.9. The rights provided under this clause 5 are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer or other associated persons.
6. Additional user subscriptions
6.1. The Customer may, from time to time during the Subscription Term, purchase additional User Subscriptions and CiiVSOFT shall grant access to the Services and the Documentation to such additional Authorised Users in accordance with the provisions of the Agreement.
6.2. If the Customer wishes to purchase additional User Subscriptions, the Customer shall notify CiiVSOFT in writing. CiiVSOFT shall evaluate such request for additional User Subscriptions and respond to the Customer with approval or rejection of the request.
6.3. If CiiVSOFT approves the Customer’s request to purchase additional User Subscriptions, the Customer shall, within 14 days of the date of CiiVSOFT’s invoice, pay to CiiVSOFT the relevant fees for such additional User Subscriptions as advised by CiiVSOFT and, if such additional User Subscriptions are purchased by the Customer part-way through the Initial Subscription Term or any Renewal Period (as applicable), such fees shall be pro-rated for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable).
7. Third Party Services
7.2. If Customer uses any third party service (e.g. a service that uses a CiiVSOFT API) in connection with the Services, CiiVSOFT will not be responsible for any act or omission of the third party, including the third party’s access to or use of Customer Materials, and CiiVSOFT does not warrant the quality or security of, or support, any service provided by the third party.
8. CiiVSOFT’s obligations
8.1. CiiVSOFT undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
8.2. The undertaking at clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to CiiVSOFT’s instructions, or modification or alteration of the Services by any party other than CiiVSOFT or CiiVSOFT’s duly authorised contractors or agents. If the Services do not conform to the foregoing undertaking, CiiVSOFT will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or to provide the Customer with an alternative means of accomplishing the performance in question. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 8.1. Notwithstanding the foregoing, CiiVSOFT:
8.2.1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
8.2.2. is not responsible for any delays, delivery failures or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.3. The Agreement shall not prevent CiiVSOFT from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under the Agreement.
9. Customer’s obligations
9.1. The Customer shall:
9.1.1. provide CiiVSOFT with:
(a) all necessary co-operation in relation to the Agreement; and
(b) all necessary access to such systems or information as may be required by CiiVSOFT,
in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
9.1.2. without affecting its other obligations under these Conditions, comply with all applicable laws and regulations with respect to its activities under the Agreement;
9.1.3. comply, and ensure the Authorised Users comply, with all instructions or guidance provided by way of the Documentation and with any other lawful instructions given by CiiVSOFT;
9.1.4. comply, and ensure the Authorised Users comply, with industry best practice and all applicable laws and regulations with respect to the Customer’s obligations under the Agreement;
9.1.5. carry out all other Customer responsibilities set out in the Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of assistance, CiiVSOFT may adjust any agreed timetable or delivery schedule as reasonably necessary;
9.1.6. ensure that the Authorised Users use the Services and the Documentation in accordance with the Agreement, and shall be responsible for any Authorised User’s breach of the Agreement;
9.1.7. obtain and shall maintain any licences, consents, permissions, software and equipment necessary to use the Services;
9.1.8. ensure that its network and systems comply with any relevant specifications provided by CiiVSOFT from time to time;
9.1.9. have appropriate access and security policies and procedures, to prevent any unauthorised access to or use of the Services;
9.1.10. be solely responsible for the placing and management of any cookies or web-tags on the Customer’s website(s);
9.1.11. be solely responsible for backing up any Customer Materials; and
9.1.12. be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to CiiVSOFT’s data centres (and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet).
9.2. The Services are not intended for Authorised Users under the age of 16. The Customer will ensure that it does not allow any person under 16 to use the Services.
10. Charges and payment
10.1. Unless otherwise agreed in writing between CiiVSOFT and the Customer, CiiVSOFT shall invoice the Customer for:
10.1.1. Set Up Fees within 14 days of the Effective Date;
10.1.2. Subscription Fees in advance, at the start of each month or year (as applicable) starting on the Live Date, for User Subscriptions provided on a monthly or annual subscription basis,;
10.1.3. Subscription Fees in advance, at the start of the Subscription Term, for Licence Credits where Services are provided on a pay-as-you-go, transactional basis; and
10.1.4. any additional fees payable in connection with the Agreement in arrears, at the end of the month in which they were incurred.
10.2. The Customer shall make payment by way of debit or credit card, standing order, bank transfer or online transaction. The Customer shall on or before the Effective Date provide to CiiVSOFT valid, up-to-date and complete contact and billing details. The Customer shall pay each invoice within 14 days of the date of such invoice. You will receive a receipt for payment as a copy for your records however any such receipt does not form part of the Agreement. The Customer acknowledges that, in the case of Subscription Fees for User Subscriptions provided on a monthly or annual subscription basis, by making an initial payment, it authorises CiiVSOFT to take payment using the payment details provided, each month or year, as appropriate, until the end of the Subscription Term.
10.3. If CiiVSOFT has not received payment within 14 days after the due date (subject to a right for the Customer to withhold any portion of an invoice under genuine dispute), and without prejudice to any other rights and remedies of CiiVSOFT:
10.3.1. CiiVSOFT may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and CiiVSOFT shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
10.3.2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of the National Westminster Bank Plc from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.4. From time to time we may agree or be required to provide additional development work, software customisation or other services to you. Any additional services will be performed at a daily rate of £500 per day (unless otherwise stated) in addition to reasonable travel and expenses. Any such additional services will be agreed in writing between the parties.
10.5. CiiVSOFT reserves the right to withdraw any credit granted should it have reasonable grounds for concern about the Customer’s solvency or ability to pay promptly, in which case Services may be suspended until such time as any amounts payable have been received in full and in cleared funds.
10.6. All amounts and fees stated or referred to in the Agreement:
10.6.1. shall be payable in pounds sterling;
10.6.2. shall be payable in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law);
10.6.3. are, subject to clauses 15.3 and 16.4.2, or unless otherwise agreed by CiiVSOFT in writing at its sole discretion, non-cancellable and non-refundable; and
10.6.4. are exclusive of value added tax, which shall be added to CiiVSOFT’s invoice(s) at the appropriate rate.
10.7. If, at any time whilst using the Services, the Customer exceeds the amount of disk, data or record storage space specified in the Documentation, CiiVSOFT may charge the Customer, and the Customer shall pay in accordance with clause 10.1.4, CiiVSOFT’s then current excess data storage fees.
10.8. CiiVSOFT shall be entitled to increase the Subscription Fees, the fees payable in respect of additional User Subscriptions, any support fees payable and/or the excess storage fees at the start of each Renewal Period upon 90 days’ prior written notice to the Customer.
10.9. Without prejudice to clause 10.8, CiiVSOFT may by written notice to the Customer increase the Subscription Fees on an annual basis with effect from each anniversary of the Live Date in accordance with the percentage increase in the Retail Prices Index in the preceding 12-month period.
10.10. Our site and marketing materials contain information about a number of services and it is always possible that, despite our best efforts, some of the services listed on our site or in our marketing materials may be incorrectly priced if pricing details are listed for those services. We will verify prices on the Order Acknowledgement.
11. Intellectual Property
11.1. The Customer acknowledges and agrees that CiiVSOFT and/or its licensors own all Intellectual Property Rights in the Services, Software and the Documentation. Except as expressly stated herein, the Agreement does not grant the Customer any rights to, or in, such Intellectual Property Rights or any other rights or licences in respect of the Services, Software or the Documentation.
11.2. The Customer shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Materials.
11.3. In relation to the Customer Materials, the Customer:
11.3.1. and its licensors shall retain ownership of all Intellectual Property Rights in the Customer Materials; and
11.3.2. grants CiiVSOFT a fully paid-up, non-exclusive, royalty-free licence, with a right to grant sub-licences, to use, copy and modify the Customer Materials for the Subscription Term for the purpose of providing the Services to the Customer.
11.4. The Customer warrants that the receipt or use of the Customer Materials by CiiVSOFT, its agents, subcontractors or consultants in the performance of the Agreement shall not infringe the rights, including any Intellectual Property Rights, of any third party.
11.5. If there is a suggestion that receipt and use of the Customer Materials by CiiVSOFT or anyone acting on its behalf infringes the rights of a third party, CiiVSOFT reserves the right to remove the offending content from the Service as soon as practicable and suspend the Services, in whole or in part, until the Customer can evidence to CiiVSOFT’s satisfaction that no such infringement is taking place.
11.6. CiiVSOFT may include the Customer’s name in a list of CiiVSOFT customers on any website, social media or in promotional materials.
11.7. In the event that the provision of the Services includes the display of Customer’s logo and/or trade mark, Customer hereby permits CiiVSOFT to use and display Customer’s logo and/or trade mark on our site.
11.8. CiiVSOFT may, at its discretion and for any purpose, use, modify, and incorporate into its products, Services, Software, Documents or licence, any feedback, comments, suggestions Customer or Authorised Users send or provide to CiiVSOFT or post, suggest, comment in forums, social media or any other media without any obligation to Customer.
12.1. Each party shall keep in strict confidence all Confidential Information relating to the other party, except as permitted by clause 12.2.
12.2. Each party may disclose the other party’s Confidential Information:
12.2.1. to its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under the Agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s Confidential Information comply with this clause 12;
12.2.2. to the extent such information is public knowledge or subsequently becomes public knowledge other than by breach of the Agreement;
12.2.3. to the extent such information is already known to or subsequently comes lawfully into the possession of such party without restriction as to its use; and
12.2.4. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible and takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.3. Neither party shall use the other’s Confidential Information for any purpose other than to perform its obligations or enforce its rights in relation to the Agreement.
12.4. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of the Agreement.
12.5. The Customer acknowledges that details of the Services, and the results of any performance tests relating to the Services, constitute CiiVSOFT’s Confidential Information.
12.6. CiiVSOFT acknowledges that the Customer Data is the Confidential Information of the Customer.
13. Data protection
13.1. Each party shall comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
13.2. Neither party shall through its acts or omissions place the other party in breach of any Data Protection Legislation.
13.3. For the purposes of the Data Protection Legislation, if CiiVSOFT Processes any Personal Data on the Customer’s behalf when performing its obligations under these Conditions, the parties record their intention that the Customer shall be the Data Controller and CiiVSOFT shall be a Data Processor. The Customer shall be responsible for determining how much Personal Data it wishes to share with CiiVSOFT, bearing in mind that: (i) more Customer Data will likely generate more accurate results from the Software; and (ii) both parties are subject to a legal obligation to process only that information that is necessary for the specified purpose.
13.4. CiiVSOFT shall process Personal Data provided by or on behalf of the Customer solely for the purpose agreed with the Customer, being the provision of software as a service to assist the Customer in streamlining its recruitment procedures and, if agreed, contacting candidates and/or promoting vacancies, and such other ancillary service(s) as the parties may agree from time to time. The parties envisage that such Processing will comprise data analysis and analytics, profiling, research, targeting and/or job vacancy marketing communications and any reasonably necessary related uses and will relate to the Customer’s potential employees. CiiVSOFT shall only Process Personal Data for the duration of delivery of the Services. CiiVSOFT shall not process any such Personal Data for any other purpose except with the express written consent of the Customer.
13.6. The Customer shall indemnify and keep indemnified and defend at its own expense CiiVSOFT against all costs, claims, damages or expenses incurred by CiiVSOFT, or for which CiiVSOFT may become liable, due to any failure by the Customer or its employees, agents or sub-contractors to comply with any of its obligations under clause 13.5 or the Data Protection Legislation.
13.7. Without prejudice to the generality of clause 13.1, CiiVSOFT shall, in relation to any Personal Data Processed in connection with this Agreement:
13.7.1. Process that Personal Data only on the written instructions of the Customer unless CiiVSOFT is required to Process such Personal Data otherwise by the laws of any member of the European Union or by the laws of the European Union applicable to CiiVSOFT (Applicable Laws). Where CiiVSOFT is relying on Applicable Laws as the basis for Processing Personal Data, CiiVSOFT shall promptly notify the Customer of this before performing the Processing required by the
Applicable Laws unless those Applicable Laws prohibit CiiVSOFT from so notifying the Customer;
13.7.2. take appropriate technical and organisational measures against unauthorised or unlawful Processing of the Personal Data or its accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful Processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, automatic data purging, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
13.7.3. ensure that all personnel (including employees) who have access to and/or Process Personal Data are legally obliged to keep the Personal Data confidential;
13.7.4. not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
(a) the Customer or CiiVSOFT has provided appropriate safeguards in relation to the transfer;
(b) the Data Subject has enforceable rights and effective legal remedies;
(c) CiiVSOFT complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) CiiVSOFT complies with reasonable instructions notified to it in advance by the Customer with respect to the Processing of the Personal Data;
13.7.5. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators; and otherwise to comply with Customer’s obligations under the Data Protection Legislation to respond to requests from Data Subjects or exercise of the rights of Data Subjects or information mandated to be provided to Data Subjects;
13.7.6. notify the Customer without undue delay and in any event within 48 hours of the point at which CiiVSOFT becomes aware of any Personal Data breach or other security incident affecting or relating to Personal Data;
13.7.7. at the written direction of the Customer, delete or return Personal Data and all copies thereof to the Customer on termination of the Agreement or at any other time unless required by Applicable Law to store the Personal Data (and the Customer acknowledges that Personal Data relating to any vacancy will be automatically deleted 67 days after a vacancy has been processed, or on such shorter timescale as may be agreed with the Customer, therefore any instruction to return data must be given in good time); and
13.7.8. maintain records and information to demonstrate its compliance with this clause 13 and relevant provisions of the Data Protection Legislation and allow for and cooperate with reasonable audits including inspections by the Customer or the Customer’s designated auditor;
13.7.9. as at the Effective Date, CiiVSOFT uses the following entities as agent or subcontractor to Process Personal Data:
(a) Google Inc;
(b) Sovren Group Inc; and
(c) DigitalOcean LLC,
each a Sub-processor.
13.7.10. in appointing any Sub-processor, CiiVSOFT:
(a) has engaged any Sub-processor by way of written contract, incorporating terms no less onerous than this clause 13;
(b) has ensured by written contract that such Sub-processor adopts sufficient technical and organisational means to prevent the risk of unauthorised or unlawful processing or accidental loss or destruction of the Personal Data;
(c) has ensured that the Sub-processor’s access to Personal Data terminates automatically on termination of this Agreement; and
(d) shall remain liable for the acts or omissions of any such Sub-processor,
and CiiVSOFT shall equally comply with such requirements in respect of any future appointment of a Sub-processor. Should CiiVSOFT appoint any other Sub-processor CiiVSOFT will give the Customer not less than 28 days’ written notice before such Sub-processor commences work and the Customer shall be entitled, within 14 days of the date of such notice, to inform CiiVSOFT in writing of the Customer’s objection to the proposed Sub-processor. If the Customer informs CiiVSOFT of any such objection CiiVSOFT will make reasonable endeavours to ensure that Personal Data can be otherwise Processed but if CiiVSOFT is not able to arrange alternative Processing the Customer shall be entitled to terminate the Agreement on 7 days’ written notice.
13.8. In the event that the Customer incurs any fine from a Supervisory Authority as a direct result of CiiVSOFT’s breach of this clause 13, CiiVSOFT shall reimburse the Customer the amount paid to the Supervisory Authority.
13.9. CiiVSOFT may, at any time on not less than 30 days’ notice, revise this clause 13 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme.
14.1. The Customer shall indemnify CiiVSOFT 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:
14.1.1. the Customer’s use of the Services and/or Documentation other than in accordance with the terms of the Agreement; and/or
14.1.2. any Customer Materials including Customer Data, used by CiiVSOFT in accordance with the Agreement and/or as instructed by the Customer or anyone acting on its behalf.
14.2. CiiVSOFT shall, subject to the provisions of clause 15.3, indemnify the Customer in respect of any compensation or legal fees awarded against or paid by the Customer arising directly from a third party claim that the Customer’s use of the Services in accordance with the Agreement infringes the rights of such third party, to the extent that such amounts cannot reasonably be mitigated and provided that:
14.2.1. CiiVSOFT is given prompt notice of any such claim;
14.2.2. the Customer provides all reasonable co-operation to CiiVSOFT in determining how to approach the defence and settlement of such claim;
14.2.3. the Customer acts reasonably and in good faith in deciding who shall have conduct of any such dispute; and
14.2.4. should the parties fail to agree on a course of action, CiiVSOFT shall ultimately have sole discretion to determine how to defend or settle the claim.
14.3. In the defence or settlement of any claim referenced at clause 14.2, CiiVSOFT may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate the Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other compensation to the Customer.
14.4. In no event shall CiiVSOFT, its employees, agents or sub-contractors be liable to the Customer to the extent that any alleged infringement of third party rights arises in connection with:
14.4.1. any Customer Materials;
14.4.2. modification of the Services or Documentation by anyone other than CiiVSOFT or its authorised agents;
14.4.3. the Customer’s use of the Services or Documentation in a manner contrary to the instructions given to the Customer by CiiVSOFT; or
14.4.4. the Customer’s use of the Services or Documentation after notice of alleged infringement from CiiVSOFT or any appropriate authority,
and CiiVSOFT reserves the right to recover any losses, costs or liabilities it incurs in relation to such matters pursuant to clause 14.1.
14.5. The foregoing states the Customer’s sole rights and remedies, and CiiVSOFT’s entire obligations and liability, in respect of infringement of any third party Intellectual Property Rights.
15. Limitation of liability
15.1. Except as expressly and specifically provided in the Agreement:
15.1.1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from or decisions based on such use (including any decision about job candidates whose applications may have been analysed by CiiVSOFT);
15.1.2. CiiVSOFT shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to CiiVSOFT by or on behalf of the Customer in connection with the Services, or any actions taken by CiiVSOFT at the Customer’s direction; and
15.1.3. any Trial Services are provided to the Customer on an “as is” basis.
15.2. Nothing in the Agreement limits or excludes the liability of CiiVSOFT:
15.2.1. for death or personal injury caused by CiiVSOFT’s negligence; or
15.2.2. for fraud or fraudulent misrepresentation or any other liability to the extent it may not be limited or excluded by law.
15.3. Subject to clauses 13.8, 15.1 and 15.2:
15.3.1. CiiVSOFT shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any: (i) depletion of goodwill; (ii) loss or corruption of data or information otherwise than due to CiiVSOFT’s negligence; (iii) pure economic loss; or (iv) special, indirect or consequential loss, costs, damages, charges or expenses, in each case however arising under or in relation to the Agreement; and
15.3.2. CiiVSOFT’s liability per claim or series of related claims in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the Agreement shall be limited to the lesser of: (i) £50,000; or (ii) the total Set Up Fees (if applicable) and Subscription Fees payable for the User Subscriptions in respect of the 3 months immediately preceding the date on which CiiVSOFT received notification of the claim.
15.4. This Agreement sets out the full extent of our obligations and liabilities in respect of the supply of the Services. Except as expressly stated in this Agreement, there are no conditions, warranties, representations or other terms, express or implied, that are binding on us. Any condition, warranty, representation or other term concerning the supply of the Services which might otherwise be implied into, or incorporated in, this Agreement whether by statute, common law or otherwise, is excluded to the fullest extent permitted by law.
16. Term and termination
16.1. The Agreement shall, unless terminated as permitted by these Conditions or otherwise agreed in writing, commence on the Effective Date and continue for the Initial Subscription Term and, thereafter, be automatically renewed for successive monthly or yearly periods as stated in the Order Confirmation (each a Renewal Period) and the Initial Subscription Term together with any subsequent Renewal Period(s) shall constitute the Subscription Term.
16.2. Without limiting its other rights or remedies, each party may terminate the Agreement at any time on one month’s written notice.
16.3. We may terminate this Agreement immediately by written notice to you if:
16.3.1. you commit a material or persistent breach of this Agreement which you fail to remedy (if remediable) within 14 days after the service of written notice requiring you to do so;
16.3.2. you become subject to an Insolvency Event; or
16.3.3. you or any of your officers, directors, employees, agents, representatives or sub-contractors is involved in any behaviour or operation which could reasonable be considered adversely to affect our good name or result in damage to our reputation.
16.4. On termination of the Agreement for any reason:
16.4.1. all licences granted under the Agreement shall immediately terminate and the Customer shall immediately cease (and ensure that all Authorised Users cease) all use of the Services and/or the Documentation;
16.4.2. you must immediately pay to CiiVSOFT (or, if applicable, CiiVSOFT may retain) any sums due to us under or in connection with this Agreement which are due in respect of the remainder of the Initial Subscription Term or then-current Renewal Term, as applicable;
16.4.3. CiiVSOFT shall refund any Subscription Fees (but not Licence Credits) paid in advance in respect of Services not provided as at termination in the event the Agreement is terminated pursuant to clause 16.1, to be calculated as from the start of the month following the month in which termination occurs;
16.4.4. each party shall return and make no further use of any equipment, property, documentation and other items (and all copies of them) belonging to the other party;
16.4.5. subject always to clause 13.7.7, CiiVSOFT will not return any Customer Data unless CiiVSOFT receives, no later than 10 days after the effective date of termination, a written request from the Customer to do so. CiiVSOFT shall use reasonable commercial endeavours to deliver the most recent back-up of the Customer Data to the Customer within 30 days of receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding (whether or not due at the date of termination) and the Customer shall pay all reasonable expenses incurred by CiiVSOFT in returning or disposing of any such back-up;
16.4.6. any provision of the Agreement that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect, including clauses 11 (Proprietary Rights), 12 (Confidentiality), 13 (Customer Data), 14 (Indemnity), 15 (Limitation of liability), 16.4 (Consequences of Termination) and 19 (General); and
16.4.7. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
17. Written Communications
17.1. Applicable laws require that some of the information or communications we send to you should be in writing. When using our site, you accept that communication with us will be mainly electronic. We will contact you by e-mail or provide you with information by posting notices on our website. For the purposes of this Agreement, you agree to this electronic means of communication.
18. Events Outside Our Control
18.1. We will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under this Agreement that is caused by events outside our reasonable control (Force Majeure Event).
18.2. A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes: strikes, lock-outs or other industrial action; civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war; fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster; impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport; impossibility of use or failure of public or private telecommunications networks or internet services; impossibility of use or failure of any public or private network or servers; and the acts, decrees, legislation, regulations or restrictions of any government.
18.3. Our performance under this Agreement shall be deemed suspended and torigent for the period that the Force Majeure Event continues, and we will have an equivalent extension of time for performance. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under the Agreement may be performed despite the Force Majeure Event.
19.1. To the extent of any inconsistency between any of the provisions in these Conditions, the Support Services Policy and the Order Confirmation, the provisions in the Order Confirmation shall prevail, followed by these Conditions, followed by the Support Services Policy
19.2. The Agreement may only be varied on written agreement of the parties.
19.3. No failure or delay by a party to exercise any right or remedy provided under the Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19.4. Except as expressly provided in these Conditions, the rights and remedies provided under the Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
19.5. If any provision or part-provision of the Agreement is or becomes invalid, illegal or unenforceable it shall be deemed deleted to the minimum extent necessary but that shall not affect the validity and enforceability of the rest of the Agreement.
19.6. The Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into the Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in the Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in the Agreement. Nothing in this clause shall limit or exclude any liability for fraud.
19.7. The Customer shall not, without the prior written consent of CiiVSOFT, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement. CiiVSOFT may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under the Agreement.
19.8. Nothing in the Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
19.9. The Agreement does not confer any rights on any person or party (other than the parties to the Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
19.10.1. Any notice required to be given under the Agreement shall be in writing and shall be sent by prepaid first-class post or recorded delivery post to the other party at its address set out in the Agreement, or such other address as may have been notified by that party for such purposes, or sent by email to the other party’s email address as set out in the Order Confirmation.
19.10.2. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not during Normal Business Hours, at 9.00am on the first Business Day following delivery). A correctly-addressed notice sent by prepaid first-class post or recorded delivery post shall be deemed to have been received on the second Business Day after posting subject to evidence of earlier receipt. A notice sent by email shall be deemed to have been received at the time of successful transmission, as shown by the absence of any ‘bounceback’ message (or if successful transmission is not during Normal Business Hours, at 9.00am on the first Business Day following successful transmission).
19.11. The Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England. Each party submits to the exclusive jurisdiction of the courts of England.