1. Definitions and interpretation
1.1 Unless the context requires otherwise, in this Agreement and in a Contract:
hireful’s proprietary web portal that may be accessed by the End Client to access and use the ATS Services.
(i) for Recruitment Campaigns, Minimum Spends (as defined in Schedule 1);
(ii) for ATS, ATS Charges (as defined in Schedule 2); and
(iii) for hireful onboarding Services, hireful onboarding Charges (as defined in Schedule 3).
means the set-up, implementation and, if applicable, configuration of the ATS Services, as further described in a Contract.
means Mondays to Fridays, excluding English Bank and public holidays.
(i) the Set Up Charges; and
(ii) the Subscription Charges,
or, as the context requires, either of them.
(i) any information disclosed by either party to the other party (whether in writing, orally or otherwise) that at the time of disclosure is either marked as “confidential” or should reasonably be understood by the receiving party to be confidential; and
(ii) the existence of, and the terms set out in, each Contract.
means a contract between hireful and the Reseller formed in accordance with clause 3.1 and made up of an Order Form, the terms set out in this Agreement and any documents expressly referred to in either of them, and any amendments to that contract from time to time.
“Data Processing Term”
means the data processing terms set out in Schedule 2.
means the person or entity identified as such in a Contract.
“End Client Contract"
means the contract between the Reseller and the End Client pursuant to which the Reseller resells the Services to the End Client.
“End Client Hiring Manager”
means an employee of the End Client who is authorised to access and use the ATS Services for the purpose of managing those vacancies to which the employee has been given access by a Recruiter User.
“End Client Hiring Manager Limit”
means the maximum number of End Client Hiring Managers who may access and use the ATS Services, as specified in a Contract.
“End Client Materials”
means all data and materials provided by the Reseller or by the End Client to hireful in relation to the Services, including (without limitation) the End Client’s trade marks and logos.
“Intellectual Property Rights”
patents, rights in inventions, know how, show how and trade secrets, copyright and related rights, moral rights, registered designs, design rights, database rights, semiconductor topography rights, trade marks and service marks, trade names, business names, brand names, get up, logos, domain names and URLs, rights in unfair competition, goodwill and rights to sue for passing off and any other intellectual property rights (in each case, whether or not registered, and including all applications to register and rights to apply to register any of them and all rights to sue for any past or present infringement of them) and all rights or forms of protection having equivalent or similar effect in any jurisdiction.
means an order form for the purchase of Services substantially in the form set out in Schedule 1.
means all data and materials provided by the Reseller or by the End Client to hireful in relation to the Services, including (without limitation) the End Client’s trade marks and logos.
“Project Start Date"
has the meaning given to it in a Contract.
means an employee of the Reseller or, at the Reseller’s request, the End Client who is authorised to access and use the ATS Services for the purpose of creating, publishing and managing new vacancies.
“Recruiter User Limit”
means the maximum number of Recruiter Users who may access and use the ATS Services, as specified in a Contract.
(i) the ATS Set-up;
(ii) the ATS Services; and
(iii) the Support Services, or, as the context requires, any of them.
has the meaning given to it in a Contract
“Set Up Charges”
the charges payable by the Reseller for the ATS Set-up, as specified in a Contract.
if applicable, means the service level agreement attached to a Contract.
the charges payable by the Reseller for the ATS Services and the Support Services, as specified in a Contract.
has the meaning given to it in clause 7.1.
1.2 In this Agreement, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
1.3 The clause headings do not affect the interpretation of this Agreement.
1.4 In this Agreement, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
1.5 In case of a conflict or inconsistency between any term of this Agreement and any provision in the Contract, the provision in the Contract prevails.
2.1 This Agreement will continue in force unless and until either party provides the other party with written notice of termination.
2.2 Termination of this Agreement shall not operate to terminate or otherwise affect any Contracts which remain to be performed or completed as at the date on which this Agreement is terminated.
3.1 Hireful and the Reseller may from time to time sign an Order Form and thereby form an unconditional, binding Contract for the supply by hireful of Services for onward sale to the End Client.
3.2 Each Contract is deemed to incorporate all the terms of this Agreement.
3.3 In the event of any conflict, dispute or inconsistency arise between any provision of this Agreement and any provision in a Contract, the relevant provision in the Contract prevails.
3.4 Nothing in this Agreement obliges hireful to provide any Services, unless and to the extent that a Contract is formed in accordance with this Agreement.
3.5 Any standard or pre-printed conditions contained on any quotation, order, acknowledgement of order, invoice or similar document have no effect and do not apply to this Agreement or to a Contract.
3.6 Once a Contract has been formed in accordance with clause 3.1:
4.1 hireful shall provide the Services in accordance with the terms of the Contract.
4.2 The Reseller must:
(a) ensure that the terms of the End Client Contract are no less protective of the ATS Platform and the ATS Services, and hireful’s Intellectual Property Rights in each of them, than the terms of the Contract;
(b) ensure that the End Client Contract does not include any restrictions on the End Client contacting, or having any direct dealings with, hireful following the period of six (6)months after the expiry or termination of such End Client Contract;
(c) provide to hireful, or procure for hireful, such co-operation, support, advice, information and documentation as hireful may reasonably request in connection with the performance of its obligations under the Contract; and
(d) perform, or procure that the End Client performs, the Project Dependencies. To assist the Reseller to comply with clause 4.2(a), hireful grants the Reseller a non-exclusive, royalty free licence to use hireful’s standard terms and conditions at https://hireful.co.uk/legal/terms-all-services/ for the purpose of drafting the End Client Contract, provided that (i) Reseller’s use of such terms and conditions shall at all times be at Reseller’s sole risk and expense and (ii) without limitation, it is the Reseller’s sole responsibility to ensure that the terms and conditions are suitable for the Reseller’s purposes, and to take such professional legal advice as the Reseller considers appropriate.
4.3 If hireful considers that the Reseller or the End Client has caused or will cause hireful to be unable to perform its obligations on time (whether as a result of the Reseller or the End Client failing to perform the Project Dependencies or otherwise), hireful shall be entitled to rely on this as relieving its performance under the Contract:(a) to the extent that it restricts, delays or precludes such performance; and(b) if hireful, promptly after becoming aware of the circumstances which have caused or may cause the actual or potential non-performance, has notified details to the Reseller in writing.
5. ATS Set-up
5.1 hireful shall provide the ATS Set-up, and use all commercially reasonable endeavours to ensure that the ATS Set-up is completed within 30 days of the Project Start Date.
5.2 If completion of the ATS Set-up is delayed by the Reseller’s failure to comply with its obligations under clause 4.2:(a) hireful shall have no liability in respect of such delay; and(b) the Reseller shall not be entitled to any refund or discount in respect of the Subscription Charges, notwithstanding that the ATS Platform is not available by the Project Start Date.
5.3 Subject to any written agreement of the parties to the contrary, any Intellectual Property Rights that are generated by, or otherwise result from, the performance of the ATS Set-up shall be the exclusive property of hireful.
6. ATS Services
6.1 hireful shall provide to the Reseller (or, at the Reseller’s request, to the End Client) login details for the ATS Platform prior to the Project Start Date.
6.2 hireful hereby grants to the Reseller the right and licence to grant to the End Client and the End Client’s Affiliates a non-exclusive, non-transferable, limited licence for the End Client and its Affiliates to access and use the ATS Services during the Services Term for the End Client’s and its Affiliates’ own business purposes.
6.3 The right and licence granted by hireful to the Reseller to grant the sublicence under clause 6.2 is subject to the Reseller ensuring that:
(a) the ATS Services are not used by more End Client Hiring Managers than the End Client Hiring Manager Limit;
(b) the ATS Services are not used by more Recruiter Users than the Recruiter User Limit;
(c) each End Client Hiring Manager and each Recruiter User does not share their access to the ATS Platform with any other employee of the Reseller, the End Client or other individual;
(d) except as required by law on a non-excludable basis, the End Client does not assign, sub-license or otherwise transfer its right to access and use the ATS Services to any third party;
(e) the End Client uses reasonable endeavours, including implementing reasonable security measures relating to its account access details, to ensure that no unauthorised person gains access to the ATS Services;
(f) the End Client and its Affiliates do not use the ATS Services in any way that causes, or may cause, damage to the ATS Platform, or which impairs or may impair the availability or accessibility of the ATS Services;
(g) the End Client and its Affiliates do not use the ATS Services:
(i) in any way that is unlawful, illegal, fraudulent or harmful; or
(ii) in connection with any unlawful, illegal, fraudulent or harmful purpose or activity;
(h) when accessing and using the ATS Services, the End Client and its Affiliates ensure that each Recruiter User and each End Client Hiring Manager:
(i) uses the then-current version of Firefox, Chrome or Microsoft Edge, with all updates installed;
(ii) uses a computer with at least 4GB of RAM; and
(iii) has an internet connection with upload and download speeds of at least 1 MBps; and
(i) if the End Client or one of its Affiliates elects to use the ATS Services to post a job advert on https://uk.indeed.com/, the End Client or the Affiliate acknowledges and accepts, that (i) it is contracting directly with Indeed UK Operations Ltd (“Indeed”) and (ii) it is solely responsible for complying with the terms and conditions forming part of the contract between the End Client and Indeed.
6.4 For the avoidance of doubt, neither the Reseller nor the End Client nor any of the End Client’s Affiliates has the right to access the software code (including object code, intermediate code and source code) of the ATS Platform or ATS Services, either during or after the Services Term.
7. Support Services
7.1 hireful shall provide to the Reseller (or, at the Reseller’s request, to the End Client) support and maintenance services in accordance with the terms of the SLA (“Support Services”).
8. Reseller Obligations
8.1 The Reseller must provide, and procure that the End Client provides, to hireful such:
(a) co-operation, support and advice;
(b) information and documentation; and
(c) governmental, legal and regulatory licences, consents and permits, as are reasonably necessary to enable hireful to perform its obligations under the Contract.
9. End Client Materials
9.1 The Reseller hereby grants to hireful a non-exclusive licence to copy, reproduce, store, transfer, adapt, publish and edit the End Client Materials to the extent reasonably required for the performance of hireful’s obligations and the exercise of hireful’s rights under the Contract, together with the right to sub-license these rights to its hosting, connectivity and telecommunications service providers.
9.2 The Reseller warrants to hireful that the End Client Materials will in all material respects be accurate, complete and not misleading, and that use of the End Client Materials by hireful in accordance with the terms of the Contract will not:
(a) breach the provisions of any law, statute or regulation;
(b) infringe the Intellectual Property Rights or other legal rights of any person; or
(c) give rise to any cause of action against hireful, in each case in any jurisdiction and under any applicable law.
10.1 Unless different invoicing terms are set out in the Contract, hireful shall issue invoices to the Reseller:
(a) for the Set-up Charges, on signature of the Contract; and
(b) for the Subscription Charges, annually in advance.
10.2 Unless different payment terms are set out in the Contract, the Reseller shall pay each correctly issued invoice by bank transfer within thirty (30) days of receipt of hireful’s invoice.
10.3 If hireful is legally required to charge VAT or other sales tax on the Charges, the Reseller shall pay such VAT or other sales tax in addition to the Charges.
10.4 hireful may increase the Subscription Charges by giving to the Reseller at least sixty (60) days’ prior written notice.
10.5 A purchase by the Reseller of an increase in the End Client Hiring Manager Limit or the Recruiter User Limit shall automatically operate as an amendment of the Contract without the need for further formality.
10.6 If the Reseller does not pay any amount properly due to hireful under the Contract, hireful may:
(a) claim interest and statutory compensation from the Reseller pursuant to the Late Payment of Commercial Debts (Interest) Act 1998; or
(b) without prejudice to hireful other rights but subject to giving the Reseller not less than five (5) Business Days’ prior notice of its intention to do so, suspend or cancel the provision of any Services under any then-current Contracts with the Reseller.
11. Intellectual Property Rights
11.1 Nothing in this Agreement or in the Contract shall operate to assign or transfer any Intellectual Property Rights from hireful to the Reseller, or from the Reseller to hireful.
11.2 All Intellectual Property Rights in the End Client Materials shall vest or remain vested in the Reseller or the End Client.
11.3 Subject to clause 11.2, all Intellectual Property Rights in all materials created or performed by hireful, solely or jointly with any person, in the course of providing the Services (“Work“) shall vest or remain vested in hireful.
11.4 hireful hereby grants to the Reseller the right and licence to grant a royalty-free, non-exclusive sublicence to the End Client and its Affiliates to access and use the Work for the End Client’s and its Affiliates’ internal business purposes during the Services Term.
11.5 At hireful’s request and expense, the Reseller shall perform (or procure the performance by the End Client of) all further acts and things, and execute and deliver (or procure the execution or delivery of) all further documents which hireful reasonably considers necessary to vest ownership of the Work in hireful or otherwise to give effect to this clause 11.
12.1 Each party (the “Receiving Party“) shall:
(a) keep the Confidential Information of the other party (the “Disclosing Party“) strictly confidential;
(b) not disclose the Disclosing Party’s Confidential Information to any person without the Disclosing Party’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in the Contract;
(c) use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information as the Receiving Party uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care; and
(d) act in good faith at all times in relation to the Disclosing Party’s Confidential Information.
12.2 Notwithstanding clause 12.1, the Receiving Party may disclose the Disclosing Party’s Confidential Information to its officers, employees, professional advisers, insurers, agents and subcontractors who are bound by a written agreement or professional obligation to protect the confidentiality of such Confidential Information.
12.3 This clause 12 imposes no obligations upon the Receiving Party with respect to the Disclosing Party’s Confidential Information that:
(a) is known to the Receiving Party before disclosure under the Contract and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Receiving Party; or
(c) is obtained by the Receiving Party from a third party in circumstances where the Receiving Party has no reason to believe that there has been a breach of an obligation of confidentiality.
12.4 The restrictions in this clause 12 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Receiving Party on any recognised stock exchange.
12.5 The provisions of this clause 12 shall continue in force for a period of five (5) years following the expiry or earlier termination of the Contract, at the end of which period they will cease to have effect.
13. Data Protection
13.1 Each party shall comply with its obligations under the Data Processing Terms.
14.1 Each party warrants to the other that:
(a) it has full capacity to enter into each Contract, and to perform its obligations under the Contract and this Agreement; and
(b) it shall comply with all applicable laws relating to anti-bribery and corruption, including the UK Bribery Act 2010.
14.2 hireful warrants to the Reseller that it shall provide the Services with such degree of care and skill as may reasonably be expected from a supplier of services which are equivalent to the Services.
14.3 hireful warrants to the Reseller that:
(a) it has taken all commercially reasonable steps to ensure that the ATS Platform will be free from viruses, worms, Trojan horses, ransomware, spyware, adware and other malicious software programs; and
(b) the ATS Platform will incorporate security features reflecting the requirements of good industry practice and in all material respects comply with the technical infrastructure and hosting provision specifications set out at https://hireful.co.uk/services/applicant-tracking-system/faqs/.
14.4 hireful warrants to the Reseller that the ATS Services, when used by the End Client in accordance with the End Client Contract, will not infringe the Intellectual Property Rights of any person in any jurisdiction and under any applicable law.
14.5 If hireful reasonably determines, or any third party alleges, that the use of the ATS Services by the End Client in accordance with the End Client Contract infringes any person’s Intellectual Property Rights, hireful may at its own cost and expense:
(a) modify the ATS Services in such a way that they no longer infringe the relevant Intellectual Property Rights; or
(b) procure for the End Client the right to use the ATS Services in accordance with the End Client Contract; or
(c) if neither of the options set out in (a) or (b) are commercially or technically practicable, terminate the Contract and refund the Reseller all Subscription Charges previously paid in respect of the ATS Services.
14.6 The parties’ warranties and representations in respect of the subject matter of the Contract are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Contract will be implied into the Contract or any related contract.
15. Acknowledgements and warranty limitations
15.1 The Reseller acknowledges (and shall ensure that the End Client acknowledges) that hireful does not give any warranties or representations to the End Client, and that the Reseller is not authorised to give any such warranties to the End Client on hireful’s behalf.
15.2 The Reseller acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of the Contract, hireful gives no warranty or representation that the ATS Services will be wholly free from defects, errors or bugs.
15.3 The Reseller acknowledges that complex software is never entirely free from security vulnerabilities; and subject to clause 14.3(b) and the other provisions of the Contract, hireful gives no warranty or representation that the ATS Services will be entirely secure.
15.4 The Reseller acknowledges that it is solely responsible to ensure that the ATS Services meet the End Client’s specific requirements. Except to the extent expressly provided otherwise in this Agreement or in the Contract, hireful does not warrant or represent that the ATS Services or the use of the ATS Services by the End Client will be suitable for the End Client’s purposes, or will provide the End Client with any specific result, return on investment or other outcome.
16. Limitations and exclusions of liability
16.1 Nothing in this Agreement or in the Contract will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
(c) limit or exclude a party’s liability for breach of clause 6.3, clause 11 (Intellectual Property Rights) or clause 12 (Confidentiality); or
(d) limit any liabilities in any way that is not permitted under applicable law; or
(e) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this clause 16 and elsewhere in this Agreement:
(a) are subject to clause 16.1; and
(b) govern all liabilities arising under this Agreement or relating to the subject matter of this Agreement, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in this Agreement.
16.3 hireful shall not be liable to the Reseller in respect of:
(a) any losses arising out of an Event of Force Majeure; or
(b) any loss of profits or anticipated savings; or
(c) any loss of revenue or income; or
(d) any loss of use or production; or
(e) any loss of business, contracts or opportunities; or
(f) any loss or corruption of any data, database or software whether or not such loss or losses would also fall within clause 16.4.
16.4 Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
16.5 The liability of each party to the other party under the Contract in respect of any event or series of related events shall not exceed:
(a) in the case of:
(i) loss or damage relating to, or a claim being made in relation to, a party’s Intellectual Property Rights; or
(ii) a breach of the Data Processing Addendum,£1,000,000; or
(b) in all other cases, an amount equal to five (5) times the Charges paid or payable by the Reseller during the 12-month period prior to the event (or first of a series of events) which gave rise to the liability.
17. Force Majeure
17.1 Neither party shall be liable for any breach of its obligations hereunder resulting from causes beyond its reasonable control including fires, strikes (of its own or other employees), insurrection or riots embargoes container shortages wrecks or delays in transportation inability to obtain supplies and raw materials requirements or regulations of any civil or military authority (an “Event of Force Majeure”).
17.2 Each of the parties hereto agrees to give notice forthwith to the other upon becoming aware of an Event of Force Majeure, such notice to contain details of the circumstances giving rise to the Event of Force Majeure.
17.3 If a default due to an Event of Force Majeure continues for more than six (6) weeks then the party not in default shall be entitled to terminate the Contract. Neither party shall have any liability to the other in respect of the termination of the Contract as a result of an Event of Force Majeure.
18.1 The parties’ rights to terminate the Contract as set out in this clause are in addition to any termination rights set out in the Contract.
18.2 Either party may terminate the Contract immediately by giving written notice of termination to the other party if the other party commits any material breach of that Contract which, in the case of a breach which is remediable, is not remedied within thirty (30) days of the date on which the other party is given written notice requiring the breach to be remedied.
18.3 Either party may terminate all Contracts immediately by giving written notice of termination to the other party if:
(a) the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors; or
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
(c) an order is made for the winding up of the other party, or the other party passes a resolution for its winding up (other than for the purpose of a solvent company reorganisation where the resulting entity will assume all the obligations of the other party under the Contract).
18.4 The termination of the Contract pursuant to this clause shall be without prejudice to any other rights or remedies a party may be entitled to hereunder or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or 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.
19. Effects of termination
19.1 Upon termination of this Agreement, all of its provisions shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): clauses 1, 2, 9, 11, 12, 13, 14, 15, 16, 19, 22, 23, 24, 25, 26, 27 and 28.
19.2 If the Contract is terminated by hireful pursuant to clause 18.2 or clause 18.3, the Reseller must pay to hireful within 30 days after the termination of the Contract an amount equal to
(i) the Charges that would have been payable during the Services Term less
(ii) all Charges actually paid by the Reseller in respect of Services provided during the Services Term.
19.3 Within 30 days following the termination of the Contract for any reason hireful will provide the Reseller (or, at the request of the Reseller, the End Client) a .csv file containing the End Client’s candidate and job data for a one off data export for free.
20.1 Any notice or consent from one party to the other party under this Agreement must be given by one of the following methods (using the relevant contact details set out at the top of this Agreement or in the Contract):
(a) delivered personally or sent by courier, in which case the notice shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be deemed to be received two Business Days following posting; or
(c) sent by email using, in the case of hireful, firstname.lastname@example.org or, in the case of the Reseller, the email address set out in the Contract, provided that if the stated time of deemed receipt is not within normal business hours, then the time of deemed receipt shall be when normal business hours next begin.
21.1 hireful may subcontract any of its obligations under the Contract, provided that hireful shall remain responsible to the Reseller for the performance of any subcontracted obligations.
22.1 The Reseller must not assign, transfer or otherwise deal with its contractual rights and/or obligations under this Agreement or the Contract without the prior written consent of hireful, such consent not to be unreasonably withheld or delayed.
23. No waivers
23.1 No breach of any provision of this Agreement will be waived except with the express written consent of the party not in breach.
23.2 No waiver of any breach of any provision of this Agreement shall be construed as a further or continuing waiver of any breach of that provision or any other provision of this Agreement.
24.1 If a provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect.
24.2 If any unlawful and/or unenforceable provision of this Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
25. Third party rights
25.1 This Agreement and the Contract is for the benefit of the parties, and is not intended to benefit or be enforceable by any third party.
26.1 This Agreement may not be varied except in accordance with this clause 26.
26.2 This Agreement may be varied by means of a written document signed by or on behalf of each party.
26.3 hireful may vary this Agreement by giving to the Reseller at least 30 days' written notice of the proposed variation, provided that if hireful gives to the Reseller a notice under this clause 26.3, the Reseller has the right to terminate any or all then live Contracts by giving written notice of termination to hireful at any time during the period of 14 days following receipt of hireful’s notice.
27. Entire agreement
27.1 This Agreement shall constitute the entire agreement between the parties in relation to its subject matter, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
27.2 Neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into this Agreement or the Contract.
27.3 The provisions of this clause 27 are subject to clause 16.1.
28. Law and jurisdiction
28.1 This Agreement shall be governed by and construed in accordance with English law.
28.2 Any disputes relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of England.