Enterprise Service Agreement relating to the TalentDesk.io Platform
- TALENTDESK LIMITED incorporated and registered in England and Wales with company number 107699129 whose registered office is at 5 Fleet Place, London EC4M 7RD, Fleet Place, London, United Kingdom, EC4M 7RD, trading as TalentDesk.io (“TalentDesk”); and
- Customer, as defined in the Order Form.
- TalentDesk offers its customers the Services.
- The Customer wishes to use the Services for its business operations as set out in this Agreement.
- TalentDesk has agreed to provide and the Customer has agreed to take and pay for the Services subject to the terms and conditions of this Agreement.
The definitions and rules of interpretation in this clause apply in this Agreement (which includes the schedules of this Agreement, which form an integral part of this Agreement). The definitions include those set out in the TalentDesk Platform Terms and Conditions.
||means this Enterprise Agreement, its schedules, the TalentDesk Platform Terms and Conditions, the Order Form and any other applicable TalentDesk policies incorporated by reference in this Enterprise Agreement.|
|“Ancillary Services”||all or any of the Ancillary Services as each is described in Schedule 1 (Services), that the Customer may at any time elect in an Order Form to take and pay for in accordance with this Agreement.|
|“Ancillary Service Charges”||the fees payable by the Customer for any Ancillary Services as set out in the Order Form.|
|“Confidential Information”||information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information including but not limited to as set out in clause 11.6 and clause 11.7.|
|“Customer Data”||the data inputted by the Customer, or by TalentDesk on the Customer's behalf, for the purpose of using the Service or facilitating the Customer's use of the Service.|
|“DP Law”||all applicable data protection laws, including the Data Protection Act 2018 as may be amended from time to time and applicable in the United Kingdom and the General Data Protection Regulation 2016/679 (GDPR) as applicable in the United Kingdom.|
|“Effective Date”||the Date that the Customer is provided with access to the Platform or the date specified on the Order Form, whichever is the earlier.|
|“Fees”||the fees payable by the Customer to TalentDesk for the Service as set out in and Order Form and in accordance with this Agreement.|
“Intellectual Property Rights”
|the means all intellectual property rights in any country or jurisdiction, including rights in patents, inventions, trade secrets and other rights in know-how, copyrights, rights affording equivalent protection to copyright, data, rights in databases, registered designs, design rights, industrial designs and utility models, rights in computer software, the right to use (and protect the confidentiality of) confidential information, trademarks, trade names, business names, trade dress, logos and domain names, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.|
|“Manager”||any person appointed as a manager on the Platform by a Customer.|
|“Order Form”||the order form entered into by the Customer and TalentDesk which states the Services procured by the Customer and the commercial details for such services.|
|“Platform”||the TalentDesk.io Platform.|
|“Providers”||any person who provides services to a Customer via the Platform and/or is introduced to the Customer via the Services.|
|“Service”||as described in Schedule 1 (Services) including the Platform, and more specifically the services the Customer has signed up to receive as set out in the Order Form.|
|“Support”||includes dedicated customer support regarding Platform functionality, technical support to address issues relating to specific company amendments/requests/customisation and support and issues relating to payments, each as detailed in Schedule 2 (Support and Hosting).|
|"TalentDesk Platform Terms and Conditions||TalentDesk's terms and conditions that govern the use of the Platform which can be accessed from the TalentDesk website here, as amended or updated from time to time.|
|"Virus"||any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by rearranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, Trojan horses, viruses and other similar things or devices.|
Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular, and a reference to one gender shall include a reference to the other genders.
A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement and shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision
2. The Service
TalentDesk shall, during the term of this Agreement, provide the Service to the Customer solely for the Customer's internal business operations on and subject to the terms of this Agreement.
Details of the Services procured by the Customer shall be set out in the Order Form which shall be agreed and signed by the parties. Each Order Form shall form part of this Agreement and shall be governed by the terms of this Agreement.
The Customer may from time to time during this Agreement elect to take and pay for any Ancillary Service, which shall in such cases form part of the Service and be provided on the terms of this Agreement.
The Customer shall not make the Service available to any third party at any time or for any purpose.
The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Service that:
- is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
- facilitates illegal activity;
- depicts sexually explicit images;
- promotes unlawful violence;
- is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
- is otherwise illegal or causes damage or injury to any person or property;
and TalentDesk reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer's access to the Platform if the Customer breaches the provisions of this clause.
- except to the extent expressly permitted under this Agreement:
- attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any element of the Service or of any software used by TalentDesk to provide the Service (as applicable) in any form or media or by any means; or
- attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of any software used by TalentDesk to provide the Service, including without limitation the Platform;
- access all or any part of the Service in order to build a product or service which competes with the Service;
- use the Service to provide services to third parties;
- license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make the Service available to any third party; or
- attempt to obtain, or assist third parties in obtaining, access to the Service, other than as authorised under this Agreement.
- except to the extent expressly permitted under this Agreement:
The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and, in the event of any such unauthorised access or use, promptly notify TalentDesk.
The Unless otherwise agreed by TalentDesk in writing, the rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
For the avoidance of doubt, use of the Services by the employees, staff or consultants of the Customer constitutes use by the Customer and not use by third parties. The Customer shall remain liable for any acts and omissions of its employees, staff or consultants, including any Manager’s use of the Platform.
3. Service Levels and Support
Details of the Support service that TalentDesk provides to its customers are set out in Part 1 of Schedule 2(Support and Hosting).
Details of the hosting service that TalentDesk provides (including uptime) are set out in Part 2 of Schedule 2(Support and Hosting).
4. Customer Data
The Customer shall own all rights, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
TalentDesk shall follow its archiving procedures for Customer Data as set out in the Back Up and Security Policy, as such document may be amended by TalentDesk from time to time. In the event of any loss or damage to Customer Data, the Customer's sole and exclusive remedy shall be for TalentDesk to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by TalentDesk in accordance with the archiving procedure set out in the aforementioned policy. TalentDesk shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by TalentDesk to perform services related to Customer Data maintenance and back-up).
TalentDesk shall, in providing the Service, comply with its Privacy and Cookies Policy relating to the privacy and security of the Customer Data, as amended by TalentDesk from time to time.
If TalentDesk processes any personal data on the Customer's behalf when performing its obligations under this Agreement, the Customer shall be the data controller and TalentDesk shall be a data processor. Each party shall comply with its obligations under all applicable DP Law in force from time to time, and in any such case:
- Schedule 4 (Data Processing) sets out the scope, nature and purposes of processing by TalentDesk, the duration of the processing, the types of personal data and categories of data subject;
- the Customer acknowledges and agrees that the personal data may be transferred or stored outside the EEA or the country where the Customer is located in order to carry out the Service and TalentDesk's other obligations under this Agreement provided at all times such transfers is in accordance with DP Law;
- the Customer shall ensure that the Customer is entitled to transfer the relevant personal data to TalentDesk so that TalentDesk may lawfully use, process and transfer the personal data in accordance with this Agreement on the Customer's behalf, including without limitation capturing the relevant consents where applicable; 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.
TalentDesk shall, in relation to any personal data processed by it in connection with its obligations under this Agreement:
- process that personal data only on the written instructions of the Customer (unless otherwise required by DP Law) in order to facilitate the Customer’s use of the Services;
- ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data;
- ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- not transfer any personal data outside of the European Economic Area unless the following conditions are fulfilled:
- the data subject has enforceable rights and effective legal remedies that are essentially equivalent to the protections within the EU; and
- TalentDesk complies with its obligations under DP Law by providing an adequate level of protection to any personal data that is transferred, including by implementing appropriate safeguards.
- assist the Customer, at the Customer's cost, to responding to any request from a data subject and in ensuring compliance with its obligations under the DP Law with respect to breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- notify the Customer without undue delay on becoming aware of a personal data breach;
- at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Agreement unless required by law to store the personal data; and
- maintain accurate records and information to demonstrate its compliance with this clause and make such records available to Customer upon reasonable request.
The Customer consents to TalentDesk appointing a third-party processor of personal data under this Agreement. TalentDesk confirms that it will enter into written agreements with all third-party processors which include terms which are substantially similar to those set out in clause 5. As between the Customer and TalentDesk, TalentDesk shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
The Customer acknowledges that the Services enables and assists it to enter into contractual relations with Providers, and purchase products and services from Providers and that it does so solely at its own risk and on terms that it will agree with each Provider. Notwithstanding any other term of this Agreement, TalentDesk makes no representation, warranty or commitment and shall have no liability or obligation whatsoever (whether to the Customer or to any third party) in relation to the performance of any contractual or statutory obligation of any Provider or for the tortious act(s) or omission(s) of any Provider or any transactions completed, and any contract entered into by the Customer with any Provider. Any contract entered into and any transaction completed is between the Customer and the relevant Provider, and not TalentDesk.
TalentDesk shall notify Providers of the terms and conditions on which Providers will register and use the Platform which will require the Providers to comply with any on-boarding requirements. TalentDesk shall not be liable for any act, omissions or tortious acts of Providers in relation to their compliance in this regard.
6. TalentDesk's Obligations
TalentDesk undertakes that the Services will comply in all material respects with the specifications set out in this Agreement and that the Services and the Support will be provided with reasonable skill and care.
The undertaking at clause 1 shall not apply to the extent of any non-conformance which is caused by the use of the Services contrary to this Agreement or contrary to TalentDesk's instructions, or modification or alteration of the Services by any person other than TalentDesk or TalentDesk's duly authorised contractors or agents. If the Services does not conform with the foregoing undertaking, TalentDesk will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding any term of this Agreement, TalentDesk:
- does not warrant that the Customer's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the Customer through the Services will meet the Customer's requirements; and
- is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
TalentDesk warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this Agreement.
7. Customer's Obligations
The Customer shall:
- provide Talentdesk with:
- all necessary cooperation in relation to this Agreement; and
- all necessary access to such information as may be reasonably required by TalentDesk;
- comply with all applicable laws and regulations with respect to its activities under this Agreement;
- carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, TalentDesk may adjust any agreed timetable or delivery schedule as reasonably necessary;
- use the Services in accordance with this Agreement and as set out in the Talent Desk Platform Terms and Conditions;
- obtain and shall maintain all necessary licences, consents, and permissions necessary for TalentDesk, its contractors and agents to perform their obligations under this Agreement, including without limitation the provision of the Services;
- keep secure any password and/or login to ensure no unauthorised use of the Platform and notify TalentDesk immediately on becoming aware of any unauthorised access or use of the Platform or any lost log in or password; and
- be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to TalentDesk's data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer's network connections or telecommunications links or caused by the internet.
8. Charges and Payment
The Customer shall pay the Fees to TalentDesk for the Service as set out in the Order Form subject to the terms of this Agreement.
TalentDesk shall invoice the Customer at the start of each month, or more frequently, as agreed between the Customer and TalentDesk, for all Fees, Support Charges and any Ancillary Service Charges due in respect of the period elapsed since the last invoice. The Customer agrees to pay all invoices in full by bank transfer within 30 days of the date on the invoice, free of deduction, set off or counterclaim.
The Fees, the Support Charges and any Ancillary Service Charges shall be paid without deduction or withholding of any income tax or other taxes, charges or duties that may be imposed, and if the Customer is required by any applicable law to withhold any part of any amount payable to TalentDesk, the Company shall at the time of payment of TalentDesk’s invoice make an additional payment to TalentDesk equal to the amount of such withholding.
If TalentDesk has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of TalentDeskTalentDesk may disable the Customer's password, account and access to all or part of the Services and TalentDesk shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid.
- shall be payable in the currency stated in the Order Form or if no currency is specified in the currency in which the Customer pays the Provider (which shall be any of sterling, euro or US dollars); and
- are exclusive of any value added tax or any other applicable sales tax, which shall be added to TalentDesk's invoice(s) at the appropriate rate.
TalentDesk shall, from time to time on notice to the Customer, be entitled to increase the Fees. If the Customer objects to the adjustment, the Customer may provide TalentDesk with 30 days' notice to terminate the Agreement, such termination notice must be given within 30 days of the Customer’s receipt of the price adjustment notice.
9. TalentDesk Terms and Conditions
This Agreement is supplemental to, and should be read in conjunction with the TalentDesk Platform Terms and Conditions. In case of a conflict, the terms of this Enterprise Agreement shall take precedence.
10. Proprietary Rights
10.1 The Customer acknowledges and agrees that TalentDesk and/or its licensors own all Intellectual Property Rights in the Services. Except as expressly stated in this Agreement, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.2 The Customer shall not do anything that infringes TalentDesk’s (or its licensors’) Intellectual Property Rights in the Services or any other materials provided by or on behalf of TalentDesk under this Agreement.
10.3 TalentDesk confirms that it has all the rights in relation to the Service that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
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;
- was in the other party's lawful possession before the disclosure;
- is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
- is independently developed by the receiving party, which independent development can be shown by written evidence.
Subject to clause 11.4, each party shall hold the other's Confidential Information in confidence and not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.
Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction, provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible, where notice of disclosure is not prohibited.
Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute TalentDesk's Confidential Information.
TalentDesk acknowledges that the Customer Data is the Confidential Information of the Customer.
No party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
The above provisions of this clause 11 shall survive termination of this Agreement, however arising.
Each party shall not engage in any activity, practice or conduct which would constitute an offence under the UK Bribery Act 2010.
Each party shall comply with all other applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption.
TalentDesk shall defend the Customer, its officers, directors and employees against any claim that the Services infringes any United Kingdom patent, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
- TalentDesk is given prompt notice of any such claim;
- the Customer provides reasonable co-operation to TalentDesk in the defence and settlement of such claim, at TalentDesk's expense; and
- TalentDesk is given sole authority to defend or settle the claim.
In the defence or settlement of any claim, TalentDesk may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
In no event shall TalentDesk, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
- a modification of the Service by anyone other than TalentDesk; or
- the Customer's use of the Service in a manner contrary to the instructions given to the Customer by TalentDesk or the terms of this Agreement; or
- the Customer's use of the Service after notice of the alleged or actual infringement from TalentDesk or any appropriate authority.
The foregoing and clause 2 state the Customer's sole and exclusive rights and remedies, and TalentDesk's (including TalentDesk's employees', agents' and sub-contractors') entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. Limitation of Liability
Except as expressly and specifically provided in this Agreement:
- the Customer assumes sole responsibility for results obtained from the use of the Services by the Customer, and for conclusions drawn from such use. TalentDesk shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to TalentDesk by the Customer in connection with the Services, or any actions taken by TalentDesk at the Customer's direction;
- all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
- the Platform is provided to the Customer on an "as is" basis.
Nothing in this Agreement excludes the liability of TalentDesk:
- for death or personal injury caused by TalentDesk's negligence; or
- for fraud or fraudulent misrepresentation.
Subject to clause 14.1 and clause 14.2:
- TalentDesk shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
- TalentDesk's total aggregate liability in contract (including in respect of the indemnity at clause 1), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the sum of Fees paid by the Customer for the Services in the 3 months prior to the date the liability arose.
15. Term and Termination
This Agreement shall start on the Effective Date and shall continue until terminated by either party in accordance with this Agreement, unless otherwise stated in an Order Form.
Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
- the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
- the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- 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;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party 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;
- an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
- the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
- a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
- a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party's assets and such attachment or process is not discharged within 14 days;
- 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 clause 15.2(c) to clause 15.2(i) (inclusive); or
- the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
On termination of this Agreement for any reason:
- any licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services;
- each party shall return and make no further use of any equipment, property and other items (and all copies of them) belonging to the other party;
- TalentDesk may destroy or otherwise dispose of any of the Customer Data in its possession unless TalentDesk receives, no later than ten days after the effective date of the termination of this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. TalentDesk shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by TalentDesk in returning Customer Data; and
- any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
16. Force Majeure
TalentDesk shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of TalentDesk or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm, pandemic, epidemic or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No variation of this Agreement or the Services shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
19. Rights and Remedies
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
20. Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
Each party acknowledges that in entering into this Agreement it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
This Agreement is personal to the parties, neither of whom may assign or sub-contract any of its rights and/or obligations under this Agreement without the prior written consent of the other.
22. No Partnership or Agency
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other (except as otherwise stated in the TalentDesk Platform Terms and Conditions), and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23. Third Party Rights
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Any notice given under this Agreement shall be in writing and shall be effective upon delivery as follows: (a) if to Customer, when sent via email to the email provided on the Order Form; and (b) if to TalentDesk, when sent via email to email@example.com, with copies to firstname.lastname@example.org and email@example.com. Any such notice, in either case, must specifically reference that it is a notice given under this Agreement.
Notices shall be deemed delivered by email on the date the e-mail was sent, provided that the e-mail is sent between 9:00am and 5:00pm on a working day in the UK and no automatic reply is received by the sender.
25. Governing Law
This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims), provided that TalentDesk may issue proceedings against the Customer in any jurisdiction in which the Customer has any assets.
This Agreement has been entered into on the Effective Date.
Schedule 1 (Services)
Minimum Contract Duration:
This Schedule sets out the Services offered by TalentDesk on the terms of this Agreement.
Customers can set up their own ring-fenced, white-labelled environment on TalentDesk called “Organisation”, which is identified by a unique alias selected by the Customer during the set-up phase. The Organisation is highly customisable in order to cater for the Customer’s needs. By fine tuning the structure, privacy settings, payment, notification, onboarding and other settings such as when invoices are raised (bi-weekly or monthly). The Organisation can be tailed within the limitations of the Platform functionality.
TalentDesk Discover Talent
This service facilitates the Platform’s integration with PeoplePerHour.com, where the Customer sources Providers through TalentDesk from freelancers on PeoplePerHour.com. The Customers can then invite those freelancers to join their Organisation on the Platform.
The service focuses on sourcing the relevant profiles, however the final responsibility to vet and approve the Providers rests with the Customer. Any Provider sourced in this manner is for engagement exclusively via TalentDesk.io.
Ancillary Service Description
- TalentDesk Payment Facilitation
Where the Customer has selected to use the TalentDesk Payment Facilitation service, TalentDesk will make payments to the Providers on behalf of the Customer based on approved worksheets.
At the end of each calendar month or more frequently as may be agreed in writing with the Customer, TalentDesk will send a single invoice to the Customer. The invoice will include:
- all approved Worksheets per Provider within the Customer’s ‘Organisation’ (as defined in the TalentDesk Platform Terms and Conditions) and per project;
- the corresponding TalentDesk Fee for the Service; and
- any applicable VAT.
Where TalentDesk provides Payment Facilitation to Customer, it will only pay Providers once it has received funds from the Customer of a sufficient amount to cover the full invoice including the Fees owed to TalentDesk, unless TalentDesk Credit is agreed between TalentDesk and the Customer.
The Customer acknowledges that TalentDesk engages the services of third party payment providers to deliver the Payment Facilitation services. TalentDesk does not pass on any costs and/or bank transaction charges incurred in processing payments by third parties, however, if there are intermediary bank charges these will be passed on to the Customer.
- TalentDesk Credit
TalentDesk Credit is only applicable if TalentDesk Payment Facilitation services have been agreed. TalentDesk Credit enables Customer’s Providers to be paid before TalentDesk has received funds from the Customer. TalentDesk will settle the invoiced amounts for the preceding month up to the monthly credit cap amount, which is set out in the Order Form.
TalentDesk reserves the right to provide TalentDesk Credit service with the aid of external third party providers in the form of Debt Factoring, or Invoice Discounting at an extra fee, which will be disclosed to the Customer, and will be equal to the sum which TalentDesk is charged by the credit provider.
TalentDesk reserves the right to increase, decrease or close the TalentDesk Credit facility for the Customer at any time by providing 15 days written notice to notify of its intention to do so.
Schedule 2 (Support and Hosting)
Part 1 - Support
Dedicated customer support to answer questions regarding Platform functionality, general information and training. Support will be available through email only via firstname.lastname@example.org with working hours scheduled during weekdays from 09:00 am to 05:00 pm UK time.
Dedicated technical support to address issues relating to specific company amendments/requests/customisations of forms. Support will be available through email only via email@example.com with working hours scheduled during weekdays from 09:00 am to 5:00 pm UK time.
Support and issues relating to payments are to be addressed to your dedicated Account Manager (firstname.lastname@example.org) for review.
Support services are provided as part of the overall Agreement, free of charge, except for support requests relating to integrations and features which require development work, which are to be negotiated separately. These services are set out below under Configuration.
Part 2 - Hosting
Where possible we always try to give advance warning of maintenance issues that may result in Platform down time but we shall not be obliged to provide such notice. TalentDesk is responsible to maintain and provide a high level of security and confidentiality of the Platform in accordance with the stated Backup and Security Policy and TalentDesk Platform Terms and Conditions.
Part 3 - Configuration
Configuration will include a pre agreed number of onboarding calls between the Customer and their allocated account manager. During these calls the Customer will be able to customise their profile to match their company needs. All fees for Configuration services will be agreed between the parties in writing. For further information please seek the advice of your account manager.
Schedule 3 (Services)
Ancillary Service Description
Scope, nature and purpose:
Contact and other relevant details of the Customer’s Manager and other staff will be processed for the purposes of introducing the Customer to potentially suitable Providers. Provider contact details, individual or company registration and bank details will be processed for the purposes of making the Providers available for work with the Customer.
For the duration of this Agreement.
Types of personal data and categories of data subject:
Provider contact details, Manager contact details, company address and registration details, bank details, any additional documentation as provided by the Customer in regards to their use of the Platform.
Last updated: Sep 22, 2021