Facecheck Limited (trading as ‘Fit for Work’) has developed a Software as a Service, mobile and web application mobile as more particularly described in Schedule 1 (“Platform”) enabling workers (“User”) to submit their personal and other information including their response to questions, identity and location (“UserData”) for the purpose of work related compliance (“Purpose”) (and for no other purposes whatsoever) (“Service”).
These conditions (together with the documents and materials referred to in it) set out the terms and conditions (“Terms of Use”) upon which you may use this Service, the Platform and any Outputs produced as a result. This Platform and its associated Service is provided by Facecheck Limited (trading as ‘Facecheck Limited), a company registered in England and Wales under number 12468906 and whose registered office is 2nd Floor, 130 Shaftesbury Avenue, London, United Kingdom, W1D 5EU. (“Facecheck Limited”, “we”, “us”, or “our”).
Please read these Terms of Use carefully together with all documents and materials mentioned in them before placing an Order for any Services relating to the Platform. If you do not accept these Terms of Use, you will not be able to Order any Service and/or access and use the Platform.
DEFINITIONS
These Terms of Use use some capitalised terms which have special meanings. These capitalised terms and their respective meanings are set out in the Glossary in Schedule 1 attached.
Where capitalised terms are used first in these Terms of Use, they are shown in bold to highlight they have a special meaning.
ORDERING, CONFIGURATION AND ACCESS TO THE SERVICES
Only your authorised Client Contact(s) may place an Order. You may not authorise any Third Party to access and/or use any of the Services and Outputs on your behalf, except where a third party of the Client is directly used in the provision of the services.
The Services will become active on the agreed Go Live date pursuant to Clause 6.2 and you can continue to use the Services during the Term.
Other than as expressly stated otherwise in these Terms of Use, you acknowledge that it is your sole responsibility to determine that the Services meet your business requirements and, to the fullest extent permissible by law and without limitation, we give no warranties that the Service will be fit for purpose.
FORMATION OF CONTRACT
All Orders are subject to:
you paying any applicable fee (if any) in advance (where any such fees are payable in advance) and our receiving that fee in cleared funds; and
acceptance by us by signing the corresponding Agreement confirming that we have accepted your Order;
whereupon a legally binding agreement will be formed between you and us.
You hereby undertake to engage us to carry out any development, consultancy, hosting and support and maintenance work in relation to the development, creation and support of any software, applications and/or materials in connection with the use and exploitation of the Platform (“AncillaryServices”). The provision of any Ancillary Services shall be provided upon and subject to our standard terms and conditions and will be costed outside of the Contract.
WARRANTIES
Subject to the remaining provisions in this Clause, we warrant that:
during the Term we will provide the Services with reasonable due care and skill in accordance with these Terms of Use;
the Services and the Platform will perform substantially in accordance with the Specification;
the Indemnified Service and the Outputs shall not infringe any third party’s intellectual property rights; and
we have the authority and right to licence all rights to and in the Service as set out in these Terms of Use.
The warranties in Clause 4.1 do not cover or apply to failures or shortcomings in the provision of the Services caused by, arising out of or due to:
Yours or User’s Internet connection; or
accident, abuse or use of the Services in a manner inconsistent with these Terms of Use or resulting from events beyond our reasonable control.
Subject to Clause 7.6, if the Service does not meet the warranties in Clause 4.1, we will, at our sole discretion, either:
modify, improve or update the Services to make them conform; or
obtain such clearances, licences and consents at our cost as may be necessary to enable you to use the Services; or
return Subscriptions paid for such Services for the period that they failed to conform; and this shall be your exclusive remedy for any breach of such warranties under this Agreement.
this shall, subject to Clause 7.4, be your exclusive remedy for any breach of such warranties under this Agreement.
SERVICE LEVELS
We shall use reasonable endeavours to ensure the Platform is Available for uptime of 99.5% per month subject to the terms of this Clause 5.
If we fail to meet our uptime obligations in any given Subscription period, you shall be entitled to the credits set out in Clause 5.4.
Downtime is measured from the time you inform us via our support contact details as notified to you from time to time that the Service is not online and operational and until the Service is once again available.
We will offer to the Client a service credit in respect of a Subscription if Availability levels are not achieved by reference to the table shown below:
The amount of such service credit shall be refunded if claimed in accordance with our service credit claim policy in force from time to time (available on request). The service credit shall be your exclusive remedy in relation to all non-availability during the Subscription period in question. You acknowledge the service credit specified in this paragraph is a reasonable and genuine pre-estimate of the loss which you are likely to suffer in relation to the non-availability in question.
We accept no responsibility for unavailability as a result of: (a) any act or omission of the Client and/or a User not authorised by us in writing; (b) a Force Majeure Event; (c) any scheduled or emergency maintenance of the Service.
PRICE AND PAYMENT
We may review and increase any of the fees payable in respect of the Services at any time. Where we do so, we will give you no less than 30 days’ prior notice before any increase is to come into effect. No fee change will be implemented in respect of any period for which you have already paid and we have received fees in respect of a Subscription paid in advance. Unless expressly stated otherwise, all fees are exclusive of VAT and/or any other applicable sales tax, which you may be able to reclaim.
Failure to pay fees when due shall be a material breach of these Terms of Use which entitles us to suspend or terminate (pursuant to Clause 12 of these Terms of Use). This, in turn, will affect your access to the Services. Fees remain chargeable at our standard rates during the suspension. If we terminate these Terms of Use for your material breach, we will require you to pay, without delay, all fees and costs accruing before the termination date, all unpaid Subscriptions and any other amounts you owe us under these Terms of Use.
If you fail to pay any amount due under these Terms of Use, we may charge you interest on the overdue amount, payable by you on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 4% per annum above the base rate for the time being of HSBC Bank plc. Such interest shall accrue on a daily basis and be compounded monthly.
All overcharges or billing disputes must be reported within 14 days of date of invoice. Failure to do so will mean you have accepted our charges.
LIABILITY
Subject always to Clauses 4.2, 4.3, 5.4, 5.5 and 5.6, the following provisions set out our entire financial liability (including any liability for the acts or omissions of our employees, agents and sub-contractors) to you arising out of and/or in connection with this Agreement or otherwise, including in respect of:
any breach of these Terms of Use; and
any representation, statement or tortious act or omission (including negligence) arising under or in connection with these Terms of Use.
Except as expressly and specifically provided in these Terms of Use, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these Terms of Use. In particular, we do not warrant that any data which we provide as part of the service will be accurate or true in any way and such data is only provided on an AS IS basis and to the fullest extent permissible by law, we disclaim and exclude any and all warranties, representations, conditions, guarantees and terms which might otherwise be implied in relation to such data. .
Any third party data which you may have licensed direct from a third party licensor included as part of the Service shall be subject to any limitations and exclusions relating to such data and notified to you by reference in the Term Sheet, as amended from time to time during the term of this Agreement.
Nothing in this Agreement excludes our liability:
for death or personal injury caused by our negligence; or
for fraud or fraudulent misrepresentation; or
any other liability which cannot be excluded or limited by law; or
any breach of the Client's Confidential Information, including Client Data.
We shall not, unless otherwise agreed between the parties in writing, back up (or restore if it is damaged) the Client Data. Therefore, you undertake to back up (and restore if it is damaged) the Client Data as often as would be considered reasonably prudent to limit the risk of any data loss and to take sensible precautions to minimise your loss, especially if the data is important to you. This may include backing up any locally held data which includes Client Data.
We shall have no liability under this Agreement for any breach of this Agreement, if any claim relates to a modification of the Services by you or your agents; your use of the Services in a manner contrary to instructions given to you by us or any claim relating to Client Data; or your use of the Services after notice of an alleged or actual infringement has been given to you; or where a claim for infringement arises directly in respect of a feature which was specified by the Client.
We do not warrant that the Services will be uninterrupted, error-free, entirely secure or virus-free (though we will endeavour to implement appropriate measures to seek to prevent viruses).
We shall accept liability for reasonably foreseeable losses arising as a direct consequence of breach by us of our statutory duty. However we shall not be liable where the causes or potential causes of the loss;
arose from the use of the Services for purposes other than for your own internal business purposes;
were reasonably foreseeable and preventable by you, such as those arising from, but not limited to:
Client Data, data or information loss caused by your failure to keep backup copies of important data on separate media; or
user inflicted problems such as those caused by failure to read and/or follow user instructions provided in writing.
In claiming against us for any such losses you are expected to avoid losses occurring and take reasonable precautions to avoid loss (such as contacting us promptly upon becoming aware of an issue).
Subject to Clauses 7.4 and 7.9, our total liability arising under or in connection with this Agreement or otherwise (whether in contract, tort, or otherwise), whether foreseeable or not will not exceed the lesser of: (a) £5,000; or (b) a sum equal to 100% of the amount actually payable by you in connection with the provision of the Service to you in the 12 month period preceding the date upon which the claim arose.
We will not be liable under or in connection with this Agreement for:
use not consistent with our applicable description of the Service in question; or
indirect, special or consequential losses or loss of profits, revenue, goodwill, reputation, wasted management time or anticipated savings.
If our performance of obligations under this Agreement is prevented or delayed by any act or omission by you, your Affiliates, agents, subcontractors, consultants or employees, we shall not be liable for any costs, charges or losses sustained or incurred by you or your Affiliates that arise directly or indirectly from such prevention or delay.
Where you require technical support we may charge fees as per our Rate Card, except where the support required relates to an issue caused by Facecheck Limited or falls within the original scope of work. The addition of other services will be defined on a case by case basis.
CONFIDENTIALITY
Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
is or becomes publicly known other than through any act or omission of the receiving party; or
was in the other party’s lawful possession before the disclosure without obligation of confidentiality; or
is lawfully disclosed to the receiving party by a Third Party without restriction on disclosure; or
is independently developed by the receiving party without reference to the Confidential Information and which independent development can be shown by written evidence; or
is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any Third Party, or use the other’s Confidential Information for any purpose other than for the purposes of these Terms of Use.
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 these Terms of Use or used for any purpose other than the performance of its obligations hereunder, and shall co-operate with the other to help regain control of the Confidential Information if it is lost, and prevent further unauthorised use or disclosure of it.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any Third Party without the participation and/or knowledge of a party hereto.
This clause shall survive termination of these Terms of Use, however arising.
CLIENT DATA AND DATA PROTECTION
You shall own all rights, title and interest in and to all of the Client Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of it.
Where we collect data and information from you or Users we shall deal with this in accordance with our Privacy Policy.
Each party shall comply with any obligations it might have under the provisions of the Data Protection Act 1998 and references in this Clause to “data processor”, “data controller” and “personal data” shall have the meanings defined in that Act.
If we process any personal data on your behalf when performing our obligations under these Terms of Use, the parties record their intention that you shall be the data controller and we shall be a data processor and in any such case:
you warrant you are entitled to transfer the relevant personal data to us so that we may lawfully process the personal data in accordance with these Terms of Use on your behalf;
we shall process the personal data only in accordance with these Terms of Use and any lawful instructions reasonably given by you from time to time;
we will not, except as agreed with you, or in accordance with your instructions, carry out any processing of personal data on equipment situated outside the European Economic Area (EEA) or transfer any personal data outside the EEA; and
each party shall take appropriate technical and organisational measures against unauthorised or unlawful processing of the personal data or its accidental loss, destruction or damage.
INTELLECTUAL PROPERTY RIGHTS
Subject to receipt by us in cleared funds of the Implementation fee and Subscription fee, we grant to you a personal, non-exclusive, non-transferable right for your Authorised Users to access and use the Services, the Platform and the Outputs solely for the Purpose subject to the terms of these Terms of Use. You may not use the Services and the Platform for any other purpose without our prior written consent, nor share any of the Service Data with third parties (including your Affiliates), and you acknowledge that additional fees may be payable on any change of use approved by us.
The Service is provided subject to the following:
you undertake you shall not (and shall not permit any Third Party to) copy, adapt, reverse engineer, decompile, disassemble, modify, adapt or make error corrections to the Service in whole or in part, except to the extent permitted by law or with our prior written consent; and
payment of the applicable Subscription fee.
We and/or our licensors own all intellectual property rights in and to the Service, the Platform, the Outputs and the Service Data. Except as expressly stated herein, these Terms of Use do not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect to the Services or any related documentation. Where the Service comprises Tools and/or other features which are licensed from a Third Party, you shall comply with all applicable restrictions and limitations relating to use of such Third Party features and shall indemnify us and our Affiliates against all losses, claims, damages and expenses suffered and/or incurred by us arising out of your failure to do so, provided we have brought the same to your attention.
You grant us a non-exclusive, royalty-free licence to use the Client Data for the purposes of providing or promoting the Service (including the publication of your business name, logo and other trade marks, and of testimonials and biographical material supplied by you), and as part of Service Data, to provide services to Applicants or our other Clients, subject always to the data protection and confidentiality provisions set out in these Terms of Use.
INDEMNITY
You shall defend, indemnify and hold us, our Affiliates and their respective directors and employees harmless against claims, actions, proceedings, losses, liabilities, damages, expenses and costs (including, without limitation, court costs and reasonable legal fees) arising out of or in connection with: (a) your use of the Services other than in accordance with these Terms of Use; (b) claims from a third party that the Client Data infringes the intellectual property rights or other rights of a third party; (c) any breach of your warranties or representations under these Terms of Use; and/or (d) any breach by you of applicable data protection, employment and other laws relating to your employees or your selection of Applicants.
TERM AND TERMINATION
These Terms of Use will come into effect on the date the Contract commences and shall remain in effect unless and until terminated in accordance with its terms.
Notwithstanding anything else contained in these Terms of Use, we may terminate (or, at our option, suspend) these Terms of Use:
immediately on giving notice in writing to you if you fail to pay any sum due under these Terms of Use or any associated agreement between us or our Affiliate (otherwise than as a consequence of any default on our part) and such sum remains unpaid for 14 days after written notice from us requiring such sum to be paid and referring to this Clause 12.2;
immediately on giving notice in writing to you if you are in material breach of any term of these Terms of Use (other than any failure by you to make any payment hereunder, in which event the provisions of Clause 12.2.1 shall apply) and, in the case of a breach capable of being remedied, shall have failed to have remedied, within 30 days of receiving notice requiring you to do so.
The client may terminate this Agreement without cause on providing no less than (30) thirty days' prior written notice to the other. If you terminate without cause, you will not be entitled to a refund and all fees due and payable hereunder shall immediately become due and payable at the effective date of termination in respect of the minimum period to which you have committed.
Without prejudice to any other rights or remedies which the parties may have, either party may terminate these Terms of Use without liability to the other immediately on giving written notice to the other if:
the other party commits a material or persistent breach of any of its obligations under these Terms of Use and (in the case of a breach capable of being remedied) does not remedy such breach within 30 days of receiving from the other party written notice of the breach and a request to remedy the breach; or
the other party suspends, or threatens to suspend, payment of its debts, is unable to pay its debts as they fall due, admits inability to pay its debts or (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 or (being a natural person) is deemed either unable to pay its debts or as having no reasonable prospect of so doing, in either case, within the meaning of section 268 of the Insolvency Act 1986 or (being a partnership) has any partner to whom any of the foregoing apply; or
the other party commences negotiations with all, or any class of, its creditors with a view to rescheduling any of its debts, or makes a proposal for, or enters into any compromise or arrangement with, its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies, or the solvent reconstruction of that other party; or
any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clauses 12.4.1 to 12.4.3(inclusive); or
if it reasonably believes that its performance under this Agreement, or any aspect of this Agreement, results in it breaching any legal, regulatory, ethical or audit independence requirement in any jurisdiction. Notwithstanding the above, the affected party may either suspend the Agreement or seek to agree variations to the Agreement to avoid such breach.
Any termination of these Terms of Use howsoever occasioned shall not affect any accrued rights or liabilities of either party nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.
FORCE MAJEURE
Provided we have complied with the provisions of Clause 12.3, we shall not be in breach of these Terms of Use nor liable or responsible for any failure to perform, or delay in the performance of, any of our obligations under these Terms of Use that is caused by events outside our reasonable control (“Force Majeure Event”).
Our performance under these Terms of Use is deemed to be suspended for the period that the Force Majeure Event continues, and we will have an extension of time for performance for the duration of that period.
We will use our reasonable commercial endeavours to mitigate the effect of any Force Majeure Event and to carry out our obligations under these Terms of Use in any way that is reasonably practicable despite the Force Majeure Event and to resume the performance of our obligations as soon as reasonably possible.
VARIATIONS
We may revise and amend these Terms of Use from time to time to reflect changes in market conditions affecting our business, changes in technology, changes in payment methods, changes in the options available in relation to the Services, changes in relevant laws and regulatory requirements, changes in our capabilities and changes in what we are able to obtain from our Third Party licensors, contractors and other suppliers.
If we need to revise or amend these Terms of Use during the Term, we will notify you no fewer than 10 Business Days in advance of the revision or amendment, and will have the right to assume that you have accepted such revision or amendment if you have not notified us to the contrary within 5 Business Days of our notification to you. If a proposed revision / amendment to these Terms of Use is not agreed between the parties then Facecheck Limited shall continue to provide and the Client shall continue to receive the Services in accordance with this Agreement until the contract renewal date.
In addition, you acknowledge that from time to time during the Term we may apply upgrades to the Platform, and that such upgrades may, subject to Clause 14.4, result in changes to the appearance and/or functionality of the Platform.
No upgrade shall disable, delete or impair the general purpose of the Platform, though we alter or amend its functionality from time to time.
You shall not be subject to any additional charges arising out of the application of the upgrade, save where:
the upgrade introduces new functionality to the Platform;
you are given the opportunity whether or not to accept such new functionality and any additional changes associated with such functionality (after, if applicable, any free trial period);
access to or use of the new functionality is chargeable to our customers using the Platform generally; and
any decision by you not to pay the charges for the new functionality will not prejudice your access to and use of the rest of the Platform.
GENERAL
Either party may not assign or sub-contract these Terms of Use or any rights and obligations hereunder without our prior written consent. We may assign these Terms of Use to our Affiliates.
Notices
Except as set out in the Term Sheet:
Any notice under these Terms of Use must be in writing and must be delivered by hand or sent by recorded delivery to the address at the head of these Terms of Use.
A notice delivered by hand or by recorded delivery will be deemed to have been received when delivered (or if delivery is not in Business Hours, at 9am on the first Business Day following delivery).
No failure by either party to enforce any rights under these Terms of Use shall constitute a waiver of such right then or in the future. Any waiver must be in writing and signed by an authorised representative of the waiving party.
If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision of these Terms of Use will be enforced to the maximum extent permissible so as to give effect to the economic intent of the parties, and the remainder of these Terms of Use will continue in full force and effect.
Other than Facecheck Limited, our Affiliates, the Client and Client Entities, a person who is not a party to these Terms of Use has no right or benefit under or to enforce these Terms of Use whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
These Terms of Use and the Schedules constitute the sole and entire understanding of the parties in relation to the subject matter of these Terms of Use and supersede all previous agreements, representations and arrangements between the parties (either oral or written) with regard to the subject matter of these Terms of Use. The parties confirm that they have not entered into these Terms of Use on the basis of any representations that are not expressly incorporated in these Terms of Use. Each party irrevocably and unconditionally waives any rights it may have to claim damages and/or to rescind these Terms of Use for any misrepresentation in relation to the subject matter of these Terms of Use whether or not contained in these Terms of Use or for breach of warranty not contained in these Terms of Use unless such misrepresentation or warranty was made fraudulently. Subject to Clause 12, these Terms of Use may only be amended or supplemented in writing and signed by an authorised representative of both parties.
DISPUTE RESOLUTION
It is the intent of both parties to resolve issues arising out of or relating to this Agreement (a “Dispute”) in a constructive and bona-fide way that reflects the concerns and commercial interests of each party at the appropriate levels of authority within each party by escalating issues in accordance with the dispute procedure set out in this clause.
Subject to the remaining provisions of this clause, the parties will attempt to resolve Disputes using the dispute procedure in this clause prior to the initiation of court proceedings. Either party may initiate the dispute procedure by giving written notice to the other party.
Disputes will be referred to the following representatives of the parties:
first, to the Client Manager assigned to you by Fit for Work and the named Client Contact for you; and
if not resolved within five (5) Business Days following the date of the notice referred to above, the Dispute may be escalated by either party to a Board Director for Facecheck Limited and the Chairman or CEO for you.
The parties’ representatives will use all reasonable endeavours to discuss the Dispute and attempt to resolve the Dispute as soon as practicable and without the necessity of any formal proceeding.
Except as set out in clause 15.6, court proceedings for the resolution of a Dispute may not be commenced until the earlier of:
the parties’ representatives concluding in good faith that amicable resolution of the Dispute through continued negotiation of the matter does not appear likely; or
fifteen (15) Business Days from the date of the notice referred to above.
Nothing in this clause will restrict or delay either party’s freedom to initiate court proceedings to seek:
any interim relief; or
preserve a superior position with regard to other creditors of the other party.
GOVERNING LAWS AND JURISTRICTION
These Terms of Use are governed by and construed according to English law and the parties hereby submit to the exclusive jurisdiction of the courts of England and Wales in relation to any dispute arising therefrom.
GLOSSARY
In these Terms of Use, unless the context otherwise requires, the following expressions have the following meanings:
Affiliate means, in relation to a body corporate, any subsidiary, subsidiary undertaking or holding company of this body corporate, and any subsidiary or subsidiary undertaking of any such holding company for the time being as defined in section 1159 of the Companies Act 2006 (as amended from time to time);
Ancillary Services has the meaning given to it in Clause 3.2;
Authorised User means administrative end users who are authorised by you to access and use the Services via the Platform in accordance with these Terms of Use;
Available where servers, or the servers operated by a third party on our behalf, hosting the Service are found, after prompt investigation by us, to be operational and accessible to any User (the Service shall be deemed available where we can demonstrate the server(s) hosting the System are operational and accessible even though a User cannot access them, whether as a result of a failure of the User's or the third party's computer system or third party communications network or the unavailability of the world wide web or otherwise and “unavailable” shall be interpreted accordingly);
Business Day means any day (other than a Saturday or Sunday) on which banks are open for the conduct of normal banking business in the City of London;
Business Hours means 9.00am to 5.00pm local UK time, on a Business Day;
Client means you, a subscriber to the Services, as defined in the Term Sheet;
Client Contact means the Client contact as set out in the Term Sheet;
Client Data means data supplied, input or uploaded by you or on your behalf and/or by Authorised Users in using the Service, and for the avoidance of doubt this includes, without limitation any logo, trade name, trade mark, branding or biographical material which you may supply to us for inclusion on the Platform, or any testimonials;
Client Entity means your company’s legal entity represented in the UK. Every other Client Entity shall be entitled to the benefit of these Terms of Use and to rely on it as if it were a party as well as the Client and to enforce in its own right any term of this Terms of Use provided always that the Client and Facecheck Limited may rescind, vary or terminate this Terms of Use without the consent of any other Client Entity.
Commencement Date has the meaning given to it in the Term Sheet;
Company means Facecheck Limited trading as Fit for Work;
Confidential Information means any non-public information, know how, trade secrets or data in any form which is designated as being “proprietary”, “confidential” or “secret” or could reasonably be understood by a reasonable person to be confidential. The term “ConfidentialInformation” shall also include any information not publicly available concerning the products, services (including the Services), finances or business of a party (and/or, if either party is bound to protect the confidentiality of any Third Party’s information, of a Third Party);
Dispute has the meaning given to it in Clause 16.1;
Go Live has the meaning given to it in Clause 6.2;
Group Company means the relevant party to these Terms of Use and its Affiliates;
Implementation Fee means the fee for initiating the Platform for your use in accordance with this Agreement;
Indemnified Service: the Service, excluding any Third Party Software or any Client Data;
Order means an offer to us to Subscribe to any one or more of the Services by submitting a Term Sheet and “Ordered” shall be construed accordingly;
Outputs means those outputs which are created and supplied or made available to the Client as part of the Services provided as part of and/or in connection with the Platform;
Platform means the Fit For Work mobile and web application and associated software and services;
Purpose has the meaning given to it in the Introduction;
Data Processing Agreement means our data processing agreement which is made available to our Clients which outlines our mutual obligations with regards to data processing;
Service(s) means any one or more of the online services available through the Platform, including, without limitation, the Tools;
Service Data means metadata and other data derived from your and other customers’ use of the Service and data submitted by Users,
Specification means the functional and technical specification in respect of the Service from time to time available upon request and confirmed in writing by us as the official specification for the Platform;
Subscribe means to pay a Subscription and “Subscribed”, “Subscribing” and “Subscriber” shall be construed accordingly;
Subscription means the relevant fee(s) (plus applicable taxes) payable to us by you, a Client, to access one or more of the Services in a particular period;
Term means the duration these Terms of Use are in force in accordance with its terms;
Term Sheet means the term sheet to be submitted by you as part of the Agreement when placing an Order;
Third Party means any legal person other than you and us;
Third Party Software means any software, material or applications provided as part of the Service, the Intellectual Property Rights in which are owned by a party other than us;
Tools means those tools offered as part of the Platform comprising the Service;
User(s) means worker or person nominated by the Client who use the Platform;
you/your/yours means the Client;
The headings in these Terms of Use do not affect its interpretation. Save where the context otherwise requires, references to clauses and schedules are to clauses and schedules of these Terms of Use.
Unless the context otherwise so requires:
references to statutory provisions include those statutory provisions as amended or re-enacted;
references to any gender include all genders;
words in the singular include the plural and in the plural include the singular; and
the word, “including” shall be deemed to mean, “including, without limitation,” and shall not limit the types or categories to the information or items following such types or categories.
