TERMS AND CONDITIONS
END USER AGREEMENT
1.1 In this Agreement, the following expressions have the meanings stated;-
- Additional Charges - any charges additional to the Licence Fees payable under this agreement.
- Agreement - the Order Summary and these terms and conditions.
- Aquarium - Aquarium HR Ltd (company number 07677821) of Poplar House, 126A Ashley Road, Hale, Cheshire WA14 2UN.
- Client - the client identified in the Order Summary.
- Documentation - any instruction manuals, user guides and other information which is made available from time to time during this Agreement by Aquarium to the Client at its discretion, whether online, in printed or any other form.
- Licence Fees - the monthly licence fees payable under this Agreement, as this may be varied by clause 6 below.
- Normal Office Hours - 9.00am to 5.00pm Mon-Fri excluding statutory holidays.
- Services - the provision by Aquarium of any technical support, training or other services under this Agreement.
- Software - the Chorus HR software.
1.2 Any reference in this Agreement to any provision of a statute shall be construed as a reference to that provision as amended, re-enacted or extended at the relevant time.
2. Contract formation and basis of contract
2.1 This Agreement shall be formed and shall become binding on both parties, on the Client receiving and Order Summary and accepting the terms of the Agreement, by providing an electronic signature or approval using such verification system as Aquarium may require.
2.2 This Agreement provides for the following, included in the Licence Fees;-
- a non-exclusive, non-transferable terminable software licence permitting the Client to use the Software;
- remote technical support;
- 5GB data storage.
2.3 Aquarium may provide certain additional Services, which shall result in Additional Charges, including;-
- on-site training; classroom training;
- SMS bundle;
- additional data storage;
- data provision on termination.
3. Proprietary Rights
3.1 The copyright to the Software and the Documentation belongs to Aquarium Software Ltd. Aquarium is licensed by Aquarium Software Ltd to enter into this Agreement.
3.2 The Client will not acquire any title, copyright or other proprietary rights in the Software or Documentation or any copies of them, which rights shall remain the property of Aquarium Software Ltd.
3.3 The Client shall notify Aquarium immediately if the Client becomes aware of any unauthorised access to, use or copying of any part of the Software or Documentation by any person.
3.4 The Client authorises Aquarium to check the use of the Software by the Client at all times, including remotely verifying the number of registered current employees for the purpose of keeping the Licence Fee up to date.
4. Access to the Software and minimum system requirements
4.1 Aquarium will use reasonable endeavours to provide the Client with login codes to allow it to access the Software and the Documentation, as soon as is practicable after the Agreement is accepted pursuant to clause 2 and Aquarium has received a direct debit mandate or such other payment arrangements as are acceptable to it.
4.2 The Client is responsible for ensuring that its system, including its hardware, software (excluding the Software), operating system, web browsers, anti-virus and security systems, ISP, internet connection and internet speed are adequate and secure, and comply with any minimum specification(s) set out by Aquarium. Aquarium may update such guidance from time to time and the Client shall be responsible for any upgrades to its own systems, which are necessary as a result.
5. Permitted Use
5.1 The Client may access and use the Software only on its own equipment in the ordinary course of its business. A separate licence is required for access to or use of the Software by any other party, including any other group or related company of the Client, save that the Client's external payroll bureau, accountants, solicitors and HR consultants may access the Software on behalf of the Client, provided that the Client shall be responsible for procuring the compliance by such parties with the terms of this Agreement including the restrictions on use of the Software.
5.2 The Client may use the Software for processing its own employee data for its own internal business purposes only.
5.3 The Client shall not use or attempt to use the Software or permit any third party to do so;-
5.3.1 to provide a data processing service to any third party by way of trade or otherwise;
5.3.2 contrary to any other restrictions stated in this Agreement.
5.4 The Client shall not copy, translate or adapt the Software for any purpose nor arrange or create derivative works based on the Software nor de-compile it save solely for the purposes expressly permitted by and in accordance with ss. 50BA of the Copyright Designs and Patents Act 1988, without Aquarium's express written consent in each case.
5.5 The Client shall not transfer or distribute (whether by licence, loan, rental, sale or otherwise) all or any part of the Software to any other person.
5.6 The Client shall not make for any purpose, including (without limitation) for error correction, any alterations, modifications, additions or enhancements to the Software except as specifically described in the Documentation nor permit the whole or any part of the Software to be combined with or become incorporated in any other program except to the extent permitted by this clause 5 without Aquarium's prior written consent.
5.7 The Client shall not make or permit others to make any copies of the Documentation without Aquarium's prior written consent.
5.8 The Client shall effect and maintain adequate security measures to safeguard the Software from unauthorised access use or copying.
5.9 The Client shall keep accurate and up to date written records of the Client's use, copying and disclosure of the Software as Aquarium may from time to time reasonably require or, in default of any specific requirement by Aquarium, then in accordance with good data processing practise and shall allow Aquarium, on request, to inspect and take copies of such records from time to time.
6. Payment Terms
6.1 The Client will pay to Aquarium the monthly Licence Fee and any Additional Charges, which fall due under this Agreement. Where applicable, VAT and any other taxes duties or levies will be paid in accordance with the terms of this Agreement additionally by the Client at the then prevailing rate.
6.2 The initial monthly Licence Fee shall relate to the then current part month and the following complete calendar month. It shall be calculated, based on the number of registered current employees stated on the Order Summary. Records of ex-employees will remain accessible but not chargeable. Thereafter, Licence Fees relate to calendar months (or parts thereof). The Licence Fee shall be varied by Aquarium, when it detects any change to the number of registered current employees on the Software, at the end of the prior calendar month.
6.3 Aquarium may invoice;-
6.3.1 the first monthly Licence Fee and any Additional Charges in respect of Services ordered at the outset, immediately on acceptance of the Agreement pursuant to clause 2;
6.3.2 the regular monthly Licence Fee and any monthly SMS charge on or after the 1st day of each month, in advance;
6.3.3 any other Additional Charges in advance of or at any time after provision of such Services to the Client.
6.4 The Licence Fee and any Additional Charges shall be based on Aquarium's then current scale of charges. Aquarium may vary the Licence Fee at any time after the first anniversary of the Agreement by giving the Client not less than 3 months prior notice. It may vary its scale of other charges at any time. Notice of such changes shall be adequately given, by Aquarium publishing them on its website or in the Software.
6.5 All sums due under this Agreement will be payable by the Client immediately on the date of invoice. The Client shall establish a direct debit mandate for payment of the Licence Fee and any Additional Charges, on acceptance of the Agreement. At its discretion, Aquarium may accept other payment methods in exceptional cases, provided that it may levy an additional annual administration fee in advance for doing so. Aquarium will assign the collection of all Client debts whether via direct debit or other pre-agreed methods to Aquarium Software Limited.
6.6 In the case of overseas Clients, Aquarium may impose additional payment formalities and may, without limitation, raise an additional charge for the cost of converting monies paid in any foreign currency to Sterling.
6.7 If any sum payable to Aquarium under this Agreement is in arrears for more than 7 days after the later of it becoming due for payment or a direct debit payment failing, Aquarium reserves the right, without prejudice to any other right or remedy, to take any or all of the following steps until payment of all arrears (including any interest and costs demanded under clause 6.7.1);-
6.7.1 charge interest on such overdue sum on a day to day basis from the original due date until paid in full at a rate of 8% per annum above the Official Dealing Rate of the Bank of England from time to time and also charge the Client for all costs and expenses (including legal costs) incurred by Aquarium in the collection of any overdue amount;
6.7.2 appropriate any payment made by the Client and set-off any monies due to the Client, whether under this Agreement or otherwise (including any VAT applicable), to or against the unpaid invoice or invoices;
6.7.3 suspend the Client's access and login codes to the Software and any support and other Services under this Agreement (provided that Aquarium will give not less than 7 days prior written notice of suspension);
6.7.4 terminate this Agreement with immediate effect by written notice.
7. Confidentiality and data protection
7.1 For the purposes of this clause 7 "Confidential Information" means all information (whether commercial, financial, technical or otherwise) relating to the disclosing party, its employees and its business and financial affairs, including Software login codes, disclosed to or otherwise obtained by the recipient party under or in connection with this Agreement and which is designated as being confidential or which is by its nature clearly confidential.
7.2 Each party undertakes in respect of Confidential Information for which it is the recipient;-
7.2.1 to treat such Confidential Information as confidential;
7.2.2 not without the disclosing party's prior written consent to communicate or disclose any part of such Confidential Information to any person except;-
- only to those employees, agents, sub-contractors and other suppliers on a need to know basis who are directly involved in the use or support of the Software;
- the recipient's auditors, professional advisers and any other persons or bodies having a legal right or duty to have access to or knowledge of the Confidential Information in connection with the business of the recipient.
7.2.3 to ensure that all persons and bodies mentioned in clause 7.2.2 are made aware, prior to disclosure, of the confidential nature of the Confidential Information and that they owe a duty of confidence to the disclosing party and to use all reasonable endeavours to ensure that such persons and bodies comply with the provisions of this clause 7;
7.2.4 not to use or circulate such Confidential Information within its own organisation except to the extent necessary for the purposes of the use or support of the Software;
7.2.5 to comply with all relevant provisions of the Data Protection Act 1998.
7.3 Aquarium may access and copy data of the Client which is stored on or associated with the Software, including sensitive personal data of the Client's employees, for the purpose of performing its obligations under this Agreement (including providing support to the Client and monitoring the number of registered current employees).
7.4 The obligations in this clause 7 will not apply to any Confidential Information;-
7.4.1 in the recipient's possession (with full right to disclose) before receiving it;
7.4.2 which is or becomes public knowledge other than by breach of this clause;
7.4.3 is independently developed by the recipient without access to or use of the Confidential Information;
7.4.4 is lawfully received from a third party (with full right to disclose).
7.5 This clause 7 will continue in force notwithstanding the termination of this Agreement for any reason.
8.1 Aquarium warrants that the Software when properly used on the Client's systems (provided such systems comply with any minimum specification stated by Aquarium) will substantially provide the facilities and functions as described in the Documentation. Aquarium reserves the right to update and vary the Documentation and the functionality of the Software from time to time.
8.2 Aquarium does not warrant that the operation of the Software will be uninterrupted or error free. In particular, but without limitation;-
8.2.1 the Software may be inoperative during periods of maintenance and update, provided that Aquarium will use reasonable endeavours, except in urgent circumstances, to avoid maintenance and updating work during Normal Office Hours;
8.2.2 the Software is web-based and is hosted on third party server(s), meaning that access to it might be interrupted from time to time for reasons beyond the reasonable control of Aquarium;
8.3 Aquarium's obligations and the Client's exclusive remedy under the warranty given in clause 8.1 is limited either;-
8.3.1 to Aquarium at its own expense using all reasonable endeavours to rectify any non-conformance with the warranty within a reasonable period of time; or
8.3.2 to the Agreement terminating, if in Aquarium's reasonable opinion it is unable to rectify such non-conformance within a reasonable timescale or at an economic cost.
8.4 Aquarium will have no liability or obligation under the warranty given in clause 8.1 unless it has received written notice from the Client of such non-conformance with the warranty within 14 days from the date of delivery on which the Client became aware of the same.
8.5 The Client acknowledges that the Software and Documentation have not been prepared to meet the Client's individual requirements and that it is the Client's responsibility to ensure that the facilities and functions of the Software meet those requirements.
8.6 Aquarium reserves the right to make changes and updates to the functionality and content of the Software, as it considers necessary.
9. Technical Support
9.1 Aquarium will provide telephone and e-mail advice and assistance on the use and operation of the Software in accordance with this Agreement and the Documentation and on any errors or faults which may arise, to the Client from time to time during Normal Office Hours and without charge, for the duration of this Agreement. Aquarium undertakes only to respond to telephone and e-mail requests made during Normal Office Hours. Any timescales discussed, shall be targets and time shall not be of the essence.
9.2 On receipt of any request for technical support, Aquarium shall use reasonable endeavours to resolve the Client's issues within a reasonable time, subject to the resources of Aquarium and provided that the support service is only available during Normal Office Hours.
9.3 Aquarium shall not be required under any circumstances to make site visits to the Client's premises or elsewhere, save where the Client has ordered chargeable on-site training Services.
9.4 Aquarium will not be responsible for any failure of the Software to provide any facility or function not described in the Documentation or for any failure of or inability to access the Software attributable to the Client's own system, including its hardware, software (excluding the Software), operating system, web browsers and anti-virus and security systems being inadequate or insecure, or failing to comply with any minimum specification(s) set out by Aquarium from time to time.
9.5 If a problem is found upon investigation not to be Aquarium's responsibility under the provisions of this Agreement, Aquarium may charge the Client immediately for all reasonable costs and expenses incurred by Aquarium in the course of or in consequence of such investigation and any remedial work or advice, at its then current rates.
10. Limitation of Liability - THE CLIENT'S ATTENTION IS SPECIFICALLY DRAWN TO THIS SECTION.
10.1 The Client acknowledges that Aquarium's obligations and liabilities in respect of the Software and Documentation and software support are exhaustively defined in this Agreement. The Client agrees that the express obligations and warranties made by Aquarium in this Agreement are in lieu of and to the exclusion of any other warranty, condition, term, undertaking or representation of any kind, express or implied, statutory or otherwise relating to anything supplied or services provided under or in connection with this Agreement including (without limitation) as to the condition, quality, performance, merchantability or fitness for purpose of the Software and Documentation or any part of them.
10.2 Aquarium shall not be liable under contract, tort (including negligence) or otherwise for any loss of production, loss or corruption of data, loss of profits or of contracts, loss of operation time, loss of goodwill and loss of anticipated savings, nor for any indirect or consequential loss, damage, cost or expense of any kind whatever and however caused arising out of or in connection with any act or omission of Aquarium.
10.3 The employment templates and processes supplied with the Software, are by their nature generic documents which need to be tailored to suit the Clients particular circumstances. Aquarium specifically advises the Client to take legal advice in respect of any documents potentially having legal or financial consequences, and although it will use reasonable endeavours to maintain and update such documents to a reasonable standard, it accepts no liability for the content of such documents.
10.4 Aquarium accepts liability for death or injury caused by the negligence of Aquarium or that of its employees, agents or sub-contractors acting in the course of their engagement under this Agreement without limit and otherwise where liability cannot be excluded or limited by law.
10.5 In the event of any other breach or breaches of this Agreement, Aquarium's total liability in aggregate in any calendar year of this Agreement (whether in contract, tort including negligence or otherwise) shall, save for clause 10.4, be limited to the Licence Fees payable in the calendar year concerned.
10.6 Any liability of Aquarium shall be subject to and conditional upon the due performance by the Client of all its obligations under this Agreement and the Customer shall not be entitled to withhold or delay payment or exercise any right of set-off which might otherwise have been available to it.
10.7 The Client shall maintain such insurance protection as shall be reasonable and prudent, taking account of the nature of the Client's business. Aquarium shall not be liable under this Agreement for losses suffered by the Client, which are, or would have been, recoverable under such policy of insurance.
10.8 The Client acknowledges and agrees that the allocation of risk contained in this clause 10 is reflected in the Licence Fee and is a recognition of the fact that the Software cannot be tested in every possible combination and that Aquarium does not and cannot warrant that the operation of the Software will be or remain uninterrupted or error free.
11.1 The Client warrants that it will not enter any data into the Software which it is not entitled to enter, or which infringes the privacy, confidentiality, data protection, human rights, intellectual property or other rights of any third party (including any of its employees) and the Client hereby agrees and undertakes fully to indemnify Aquarium both before and after termination hereof for and against all damages, losses, claims, demands and expenses which Aquarium may incur as a result of breaches by the Client of any provision of this Agreement, including this clause.
12. Duration and termination
12.1 This Agreement shall continue for a minimum term of 12 months and then until terminated at any time by either party serving not less than 1 months prior written notice of termination on the other party (expiring at any time from the first anniversary).
12.2 Aquarium may terminate this Agreement with immediate effect by written notice to the Client, without prejudice to its other rights under this Agreement, if the Client;-
12.2.1 fails to comply with any of the material provisions of this Agreement;
12.2.2 fails to make any payment to Aquarium within 7 days after its due date;
12.2.3 convenes any meeting of creditors or passes a resolution for winding up or suffers a petition for winding up;
12.2.4 has an administrative receiver or receiver appointed over the whole or part of its assets or suffers the appointment of an administrator; or
12.2.5 being an individual commits any act of bankruptcy or compounds with his creditors or comes to any arrangements with any creditors,
13. Post Termination
13.1 On termination of this Agreement however caused, the Client's authorisation to use the Software and Documentation will automatically cease and the Client undertakes immediately to cease to use them and, in the event of having any physical material associated with the Software or Documentation, either to return it to Aquarium or, if requested by Aquarium, delete, destroy or otherwise make it permanently unusable.
13.2 On termination, the Client's access to the Software, including any data stored on the Software, shall cease unless the Client has requested, in writing prior to the termination date, continued access to the Software via a single user, read only licence at a cost of £10 + VAT per month and for a maximum period of 6 months from the date of termination.
13.3 Following termination, the Client may request Aquarium to provide it with a copy of its data stored on the Software in SQL database or Excel format, in which event Aquarium may levy Additional Charges at its then current rates (and may require these to be paid in advance). The Additional Charges will be based primarily, but not exclusively, upon the number of active employees stored within the Software at the point of termination. The current rates which are valid for 12 months from the date of this agreement, are as follows: - Up to 25 employees - £250, Up to 50 employees - £500, up to 75 employees - £750 and over 75 employees - £1000. All prices are subject to VAT.
13.4 Termination of the Agreement however caused will not affect the rights of either party under this Agreement, which may have accrued up to the date of termination.
14.1 The Client may not assign or otherwise transfer its rights or obligations under this Agreement without the prior written consent of Aquarium.
14.2 Aquarium may assign or sub-contract any of its rights or obligations under this Agreement.
14.3 Neither party shall be liable for any delay in performing or failing to perform any of its obligations under this Agreement due to any act of God, war, strike, lock-out, industrial action, fire, flood, drought, tempest or other event beyond the reasonable control of either party. The party claiming the force majeure event will promptly notify the other of it and will take all reasonable steps to minimise its effect. Any costs associated with such event shall be borne by the party incurring those costs.
14.4 All notices to be given under this Agreement shall be in writing (including e-mail) and shall be sent to the normal business or nominated e-mail address of the party concerned by first class post, e-mail or by hand.
14.5 No delay or failure by either party to exercise any of its powers, rights or remedies under this Agreement will operate as a waiver of them and any waiver, to be effective, must be in writing.
14.6 If any part of this Agreement is found by a court or other competent authority to be invalid, unlawful or unenforceable then such part will be severed from the remainder of this Agreement which will continue to be valid and enforceable to the fullest extent permitted by law.
14.7 This Agreement is the complete and exclusive statement of the Agreement between the parties relating to the subject matter of the Agreement and supersedes all previous communications, representations and other arrangements, written or oral.
14.8 No change shall be permitted unless expressly agreed in writing and signed by persons authorised on behalf of both parties.
14.9 This Agreement will be construed in accordance with and governed by the laws of England and Wales and each party agrees to submit to the jurisdiction of the courts of England and Wales.
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