Workforce will perform each Service from the relevant Service Commencement Date:
with reasonable care and skill; and
in accordance with the Contract.
Any timescales in the Contract for its commencement or performance are indicative only. Workforce will use reasonable efforts to meet such timescales and will notify the Customer (where it is reasonably practicable to do so) where it is unable to meet such timescales.
The Customer shall perform the Customer Obligations in a timely manner. In particular, the Customer shall, and shall ensure that its Users shall:
use the Services in a professional and responsible way, and shall comply with all applicable Laws relating to its use or receipt of the Services;
use the Services only for the Customer's own internal business purposes, in the manner authorised by Workforce, and for no other purpose unless expressly provided otherwise in the Contract;
ensure that its Users are properly trained in the use of the Solution;
intentionally or recklessly distribute Viruses;
upload or provide any materials which are obscene, offensive, or otherwise objectionable;
alter, disable, interfere with, or circumvent any aspect of the Services or the equipment used to provide the Services, including any of the security features of the Services, or do anything designed to affect their integrity or access to them;
test or reverse-engineer the Services in order to find limitations or vulnerabilities, or for any other reason;
reproduce, modify, decompile, reverse engineer, or prepare derivative works of the Services, or otherwise infringe any intellectual property rights in the Services;
perform any indexing, scraping, or data mining of the Services; or
infringe any person's privacy rights, intellectual property rights, or other rights in the course of its use of the Services;
promptly provide (with reasonable care and skill) such assistance, information, and cooperation as Workforce may reasonably request from time to time in order for Workforce to perform its obligations and ensure that all information and materials provided to Workforce is accurate, adequate, and complete;
In relation to its use of the Solution, the Customer shall authorise and de-authorise Users through the Solution in the manner specified by Workforce, ensuring that all Users are under the Customer’s control or direction. Workforce is entitled to rely on the permissions granted to Users through the Solution in connection with the Customer's use of the Services.
Charges and Payment
If the Customer wishes to increase the scope of the Services after the Effective Date and Workforce agrees to such change, Workforce will modify the Charges accordingly for the remainder of the Term. If the change applies to a Service period in respect of which the Customer has already paid the Charges, then Workforce shall issue an interim invoice for the additional Services, such Charges to be paid in accordance with this Clause 5.
All sums payable by the Customer shall be exclusive of Tax. The Customer shall pay all Tax properly chargeable on those sums, if Workforce has delivered a correct Tax invoice.
Workforce shall invoice the Customer for the Services in accordance with the charging frequency nominated by the Customer on the Workforce Billing Portal on the Effective Date (the "Payment Cycle").:
The Customer shall on the Effective Date provide to Workforce valid, up-to-date and complete billing details acceptable to Workforce. The Customer hereby authorises Workforce to bill such payment method:
for Customers that select the monthly Payment Cycle, on the Effective Date and each month thereafter for the remainder of the Term; and
for Customers that select the annual Payment Cycle, on the Effective Date and each year on the anniversary of the Effective Date thereafter for the remainder of the Term.
All amounts and fees stated or referred to in this Contract as non-cancellable and non-refundable.
Interest for late payment
If the Customer fails to pay any sums due under a Contract on or before the due date for payment, the Customer shall pay interest on the outstanding amount. Interest shall accrue at a daily rate from the due date until the date of actual payment in full (whether before or after judgment) at the rate of 4% per annum over the Bank of England Base Rate compounded monthly or, as Workforce may elect, at the rate and on the basis specified under the Late Payment of Commercial Debts (Interest) Act 1998. The Customer shall pay any interest so charged immediately on demand.
Set-off and withholding
The Customer shall pay Workforce all sums under the Contract in full without any set-off, counterclaim or deduction. If the Customer is required by law to deduct or withhold an amount from any sum payable to Workforce under the Contract (whether as a result of tax or otherwise), the Customer shall pay to Workforce a sum that ensures that Workforce receives and retains a net sum equal to the amount Workforce would have received if no such deduction or withholding had been made or been required to be made. If Workforce has liabilities to the Customer, Workforce may elect to set-off any sums payable by Workforce to the Customer against any sums payable by the Customer to Workforce.
Acceleration of payment on termination
All sums payable by the Customer to Workforce under the Contract shall become due immediately on its termination, despite any other provision of the Contract and without prejudice to Workforce's right to charge interest on late payment. Such sums shall include any sums that are payable as a result of termination but have not yet been invoiced by Workforce, including those due under clause 15.
If the Customer disputes the whole or part of an invoice, the Customer shall notify Workforce in writing by email to email@example.com (or by such other means as Workforce may advise from time to time), within seven (7) days after the date of invoice. The notice must state that the invoice is disputed and be accompanied by details of the invoice that is being disputed and the reasons for the dispute. If the disputed amount is less than five per cent (5%) of an invoice, the Customer shall pay the invoice in full. If the disputed amount is five per cent (5%) or more of an invoice, the Customer shall pay the undisputed amount. Workforce and the Customer shall each use reasonable endeavours to resolve the dispute as soon as reasonably practicable. The Customer waives the right to dispute its liability to pay any invoice in respect of which it has not raised a dispute in accordance with this clause.
Right to vary the Charges
Workforce reserves the right to vary the Charges by such amount as Workforce considers appropriate in its absolute discretion, and the new Charges shall take effect from the start of the next Renewal Period, provided that Workforce gives the Customer prior written notice of at least five Business Days more than the notice period specified in clause 126.96.36.199.
Calculation of Charges
Charges shall be calculated in reference to;
the number of Active Employees listed by the Customer for its account for the Software via the Workforce Application;
the number of SMS messages sent by, or on behalf of, the Customer via the Software;
any other variation or ‘add on’ to the Software requested by the Client.
Notwithstanding anything else stated in the Contract, if Workforce makes a Service available for the Customer’s use or performs Services in part prior to making the full scope of the Service available or performing the Contract in full, then Workforce may invoice and the Customer shall pay a pro rata proportion of the Charges which will be calculated in relation to the part of the Service that is made available or the part of the Contract which is performed. This clause shall not apply to any Trial Services.
Where any support or assistance is required by the Customer and is outside of the scope of a Contract, additional charges will be payable based on Workforce’s standard rates for such support or assistance at the relevant time, along with any Expenses incurred by Workforce in providing such support or assistance. This may include any support provided by Workforce to determine the origin or cause of a Service failure for which Workforce subsequently determines (acting reasonably) it was not responsible.
For clarity, the Customer and Workforce acknowledge that Workforce Data may incorporate or be derived, at least in part, from Customer Input Materials, and accordingly, while the Customer shall have exclusive title and ownership over the Customer Materials, Workforce shall retain exclusive title and ownership to the Workforce Data.
Subject to the Customer paying the Charges in accordance with Clause 5.1, Workforce grants the Customer a revocable, non-exclusive, non-transferable, non-sub licensable licence during the Term to permit the Users to:
access and use the Solution via the Workforce Application for the Customer's internal business purposes in accordance with the Contract;
use any Intellectual Property Rights subsisting in the Services (excluding any Third Party Software) solely for the Customer's internal use in accordance with the Contract.
If Workforce or its licensors suspect that the Customer may have contravened any licence terms, Workforce may inform each relevant licensor to such effect and the Customer shall co-operate with Workforce and its licensors in investigating such activities.
Workforce shall not be in breach of contract or otherwise liable to the Customer for any failure to perform or delay in performing its obligations under a Contract to the extent that such failure or delay is due to any failure to perform or any delay in the Customer performing any Customer Obligations, or other circumstances outside Workforce's reasonable control (a "Relief Event"). On the occurrence of a Relief Event, Workforce shall be entitled to a reasonable extension of time in order to perform its obligations and (acting reasonably) to vary the Charges, recover any additional Expenses that it may incur in performing its obligations, and charge the Customer such other sums to which it is entitled under the Contract (if any).
Confidentiality and Data Privacy
Except to the extent set out in this clause 10 or where disclosure is expressly permitted elsewhere in a Contract, each party shall:
treat the other party's Confidential Information as confidential and safeguard it accordingly; and
not disclose the other party's Confidential Information to any other person without the other party’s or the owner's prior written consent.
Clause 10.1 shall not apply to the extent that:
such disclosure is a requirement of Law placed upon the party making the disclosure;
such information was in the possession of the party making the disclosure right without obligation of confidentiality prior to its disclosure by the information owner, or is obtained from a third party without obligation of confidentiality;
such information was already in the public domain at the time of disclosure otherwise than by a breach of a Contract;
such information is independently developed without access to the other party’s Confidential Information;
disclosure is made to a party’s legal counsel, independent auditors, or other professional advisers who are subject to professional duties of confidence; or
the Confidential Information is personal data for which a party who would otherwise be subject to an obligation of confidence under this clause is a Controller.
Workforce may disclose the Customer’s Confidential Information to:
any of its Affiliates for the purposes of management and reporting or who have a need to know the Confidential Information in order to assist Workforce in the performance of a Contract;
any employees, consultants, directors, officers, contractors, subcontractors, and service providers who have a need to know the Confidential Information for the performance of a Contract;
any bank or third party providing finance to Workforce; or
any other person to whom Workforce may disclose Confidential Information or certain categories of Confidential Information as stated in a Contract (including the Data Processing Schedule).
The Customer will be responsible for:
preventing unauthorised use of the Services;
maintaining the security of all systems and equipment within its (or its employees’, agents’ or contractors’) control;
maintaining (and ensuring that each of its Users maintains) the integrity and secrecy of all passwords, log-in details, and access codes used for the purposes of accessing or using the Services or any systems or equipment; and
ensuring that it maintains a list of its Users and terminates access immediately for anyone who is no longer a User.
Workforce may at its discretion by giving at least ten (10) days' prior written notice to the Customer:
change the technical specification or functionality of a Service;
provide an alternative service or software or make changes to a Service; and
change a Service or these General Terms or the other provisions of the Contract as it may consider appropriate, for example to reflect changes made to the services supplied by third party agents, sub-contractors, or licensors used by Workforce to provide the relevant Service or the terms on which they do business with Workforce,
(each a "Workforce Change").
A Workforce Change shall be binding on the Customer unless the Customer objects to it. The Customer shall have the right to object to a Change only if it materially decreases or impairs the performance of the Service or if there is a material variation to the terms of the Contract detrimental to the Customer (a "Material Workforce Change"). If the Customer has not given written notice of its rejection of a Material Workforce Change within five (5) days of being notified of it, then the Customer will be deemed to have accepted it. If the Customer objects to a Material Workforce Change within the required time period, then the following provisions shall apply: Workforce shall have the right to suspend the affected Service(s) without liability to the Customer until agreement can be reached or the Contract terminated (as follows);
the parties will negotiate in good faith to agree a variation acceptable to both parties. If the parties cannot agree on the proposed variation within ten (10) days of the Customer receiving the initial details of the variation from Workforce, either party may terminate the Contract and Workforce shall have no liability to the Customer for such termination. The Customer shall remain liable to pay to Workforce all Charges and Expenses incurred up to the date of termination; and
Workforce shall be entitled to charge any additional Charges and Expenses incurred as a result of any delay in the Customer's acceptance of the variation that may cause Workforce to demobilise and/or remobilise any resources or extend the timescales for the performance of the Contract, if such additional Charges and Expenses are not incorporated into a variation that is agreed by Workforce and the Customer.
Workforce may suspend access to a Service, either in whole or in part: if any circumstances occur which would give Workforce a right to terminate the Service or any Service upon which it relies;
in an event of emergency, and/or to safeguard the integrity and security of its network, and/or to maintain, repair, or enhance the performance of its network;
for any breach or suspected breach of clause 4;
where a third-party service provider or licensor suspends or interrupts the provision of the Services;
where the Customer fails to pay any sums payable under a Contract as and when they become due; or
where it is expressed to have the right to do so elsewhere in a Contract.
Either party may terminate a Contract immediately or on such other notice as it considers appropriate if:
the other party fails to pay any amount due under a Contract on the due date for payment and remains in default not less than seven (7) days after being notified in writing to make such payment;
the other party is in material breach of a Contract and the breach either cannot be remedied or is not remedied by the other party within thirty (30) days of receiving notice of the breach from the party not in breach.
Workforce may terminate this Contract:
to manage obsolescence or discontinuance of Services or any services or systems used by it to provide any Services;
in any other circumstances in which Workforce has suspended a Service in accordance with the Contract and has not been able to reinstate it within ten (10) Business Days following the initial suspension having exercised reasonable efforts to do so where appropriate; or
where it is expressed to have the right to do so elsewhere in a Contract.
Consequences of Termination
Assignment and Subcontracting
Governing Law, Jurisdiction, and Dispute Resolution
Variation of a Contract
The rights and remedies of the parties shall not be affected by any failure to exercise or delay in exercising any right or remedy or by the giving of any indulgence by any other party or by anything whatsoever except a specific waiver or release in writing and any such waiver or release shall not prejudice or affect any other rights or remedies of the parties. No single or partial exercise of any right or remedy shall prevent any further or other exercise thereof or the exercise of any other right or remedy.
Severance and Unenforceable Provisions
If any provision or part of a Contract is illegal, unlawful, void or unenforceable due to any Law, it shall be deemed to be deleted and the remaining provisions of a Contract shall continue in full force and effect.
Rights of Third Parties
Definitions and Interpretation
In a Contract, unless the context otherwise requires, these terms will be given the following meanings
In the Contract, unless the Contract otherwise requires:
words in the singular shall include the plural and words in the plural shall include the singular;
words denoting any gender include all genders;
the headings are for convenience only and shall not affect the construction of a Contract;
references to each party herein include references to its successors in title and permitted assigns. If a party comprises more than one person, a Contract will apply to them jointly and severally;
references to "includes" or "including" shall be read as being immediately followed by the words "without limitation";
any capitalised terms (or terms beginning with a capital letter) that are used but are not defined in the Contract shall be given their generally accepted meaning in the information technology industry or, where there is no such generally accepted meaning, their ordinary meaning within the context of the Contract;
a "signature" may include a handwritten "wet ink" signature, a digital signature or any other electronic act indicating consent or acceptance including a typed-name, clicking a website button or incorporating a scanned manuscript signature into a document or email, and any reference to "sign" or "signed" shall be construed accordingly.