Terms and Conditions

TalentDesk SaaS Terms and Conditions

1. Interpretation

1.1 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).

1.2 Clause headings shall not affect the interpretation of this Agreement.

1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).

1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.

1.5 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.

1.6 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.

1.7 Any words following the terms including, include, in particular, for example or any similar expression shall be interpreted as illustrative and shall not limit the sense of the words preceding those terms.

2. The services

2.1 TalentDesk shall, during the term of this Agreement, provide the Services to the User solely for the User's internal business operations on and subject to the terms of this Agreement.

2.2 The User shall not make the Services available to any third party at any time or for any purpose.

2.3 The User shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:

1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

2. facilates ilegal activity;

3. depicts sexually explicit images;

4. promotes unlawful violence;

5. is discriminatory based on race, gender, colour, religious beliefs, sexual orientation, disability; or

6. 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 User, to disable the User's access to the Platform if the User breaches the provisions of this clause.

2.4 The User shall not:

1. except to the extent expressly permitted under this Agreement:

   1. i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any element of the Services or of any software used by TalentDesk to provide the Services (as applicable) in any form or media or by any means; or

   2. 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 Services, including without limitation the Platform;

2. access all or any part of the Services in order to build a product or service which competes with the Services;

3. use the Services to provide services to third parties;

4. license, sell, rent, lease, transfer, assign, distribute, display, disclose, commercially exploit, or otherwise make the Services available to any third party; or

5. attempt to obtain, or assist third parties in obtaining, access to the Services, other than as authorised under this Agreement.

2.5 The User shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify TalentDesk.

2.6 The Unless otherwise agreed by TalentDesk in writing, the rights provided under this clause 2 are granted to the User only, and shall not be considered granted to any subsidiary or holding company of the User.

2.7 For the avoidance of doubt, use of the Services by the employees, staff or consultants of a User constitutes use by the User and not use by third parties. Users shall remain liable for any acts and omissions of their employees, staff or consultants.

3. User Data

3.1 The User shall own all its rights, title and interest in the User Data it uploads to the Platform and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the User Data.

3.2 TalentDesk shall follow its archiving procedures for User 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 User Data, the User's sole and exclusive remedy shall be for TalentDesk to use reasonable commercial endeavours to restore the lost or damaged User Data from the latest back-up of such User 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 User Data caused by any third party (except those third parties sub-contracted by TalentDesk to perform services related to User Data maintenance and back-up).

4. Data Protection

4.1 TalentDesk Privacy Policy is available at https://www.talentdesk.io/legal/privacy-policy.

4.2 Any personal information that you provide to TalentDesk will be dealt with in line with its Privacy Policy which explains what personal information we collect from the Users, how and why we collect, store, use and share such information, your rights in relation to your personal information and how to contact the supervisory authorities if you have a query or complaint about the use of your personal information.

5. Third Party Contracts

5.1 The parties acknowledges that the Services enable and assist Customers to enter into contractual and working relations with Providers and other users of the Platform (together, ‘Third Parties’), and to purchase products and services from Third Parties and that it does so solely at its own risk and on terms that it will agree with each Third Party. 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 Customer or Third Party or for the tortious act(s) or omission(s) of the Customer or any Third Party, any transactions completed, and any contract entered into by the Customer with any Third Party. Any contract entered into and any transaction completed is between the Customer and the relevant Third Party, and not TalentDesk.

5.2 TalentDesk shall inform each User registering on the Platform of the applicability of these terms and conditions and the documents referenced in them to all users of the Platform. TalentDesk shall not be liable for loss, cost, damage, injury or expense suffered or incurred by the User as a result of any failure by a Third Party (including another User) to comply with its obligations under those terms and conditions and documents.

5.3 The User undertakes that it will (except where the Provider is contracting directly with the Customer to provide its services):

1. not contract outside the Platform (and will not attempt to contract) with another User of the Platform in relation to services obtained via the Platform unless TalentDesk has given its express written permission to contracting outside the Platform. If the User breaches this undertaking, TalentDesk may, without limitation to any other rights or remedies available to TalentDesk, immediately suspend the Services and/or terminate this Agreement;

2. notify TalentDesk of any offer made to it by another user of the Platform to enter an engagement outside the Platform.

6. TalentDesk's Obligations

6.1 TalentDesk undertakes that the Services will comply in all material respects with the specifications on the Platform and that the Services will be provided with reasonable care and skill.

6.2 The undertaking at clause 6.1 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 do 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 User with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the User's sole and exclusive remedy for any breach of the undertaking set out in clause 6.1. Notwithstanding any term of this Agreement, TalentDesk:

1. does not warrant that the User's use of the Services will be uninterrupted or error-free; or that the Services and/or the information obtained by the User through the Services will meet the User's requirements; and

2. 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 User acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities.

6.3 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. User's Obligations

7.1 The User shall provide Talentdesk with:

1. necessary cooperation in relation to this Agreement including providing identification all documentation; and

2. all necessary access to such information as may be reasonably required by TalentDesk,in order to provide the Services;

3. comply with all applicable laws and regulations with respect to its activities under this Agreement and pay all taxes and other amounts due in relation to any payment made to another user or Third Party of the Platform by the User;

4. notify TalentDesk immediately if it may not as a result of the application of any law or regulation make or receive payment and/or be paid in respect of any of the arrangements contemplated by this Agreement;

5. carry out all other User responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the User's provision of such assistance as agreed by the parties, TalentDesk may adjust any agreed timetable or delivery schedule as reasonably necessary;

6. use the Services in accordance with this Agreement;

7. 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;

8. 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;

9. indemnify TalentDesk and keep it indemnified against any liability, deduction, contribution, assessment or claim arising from or made in connection with the provision or receipt of services by the User in connection with the Services, where the recovery is not prohibited by law; and any liability arising from any employment-related claim or any claim based on worker status (including reasonable costs and expenses) brought by a Provider against TalentDesk arising out of or in connection with the provision of the Services, except where such claim is as a result of any act or omission of TalentDesk; and

10. 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 User's network connections or telecommunications links or caused by the internet.

8. Charges and Payments

8.2 The Customer shall pay the Fees to TalentDesk for the Services in accordance with the terms of this Agreement.

8.3 TalentDesk shall invoice the Customer at the start of each month, or more frequently, as agreed between the Customer and TalentDesk, for all Fees and other payments 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.

8.4 The Fees 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 Customer shall at the time of payment of TalentDesk’s invoice make an additional payment to TalentDesk equal to the amount of such withholding.

8.5 If TalentDesk has not received payment within 14 days after the due date, and without prejudice to any other rights and remedies of TalentDesk, TalentDesk 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.

8.6 All amounts and fees:

1. shall be payable in the currency stated in the Order Form or, if no currency is specified, in the currency in which the User pays the Provider (which shall be any of sterling, euro or US dollars); and

2. 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.

8.7 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, provided that such termination notice must be given within 30 days of the Customer’s receipt of the price adjustment notice.

9. Proprietary Rights

9.1 The User acknowledges and agrees that TalentDesk and/or its licensors own all Intellectual Property Rights in the Platform and the Services. Except as expressly stated in this Agreement, this Agreement does not grant the User 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.

9.2 The User shall not do anything that infringes TalentDesk’s (or its licensors’) Intellectual Property Rights in the Services any other materials provided by or on behalf of TalentDesk under this Agreement.

9.3 TalentDesk confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.

10. Confidentiality

10.1 Each party may be given access to Confidential Information of the other party and other Users under this Agreement. Confidential Information shall not be deemed to include information that:

1. is or becomes publicly known other than through any act or omission of the receiving party;

2. was in the other party's lawful possession before the disclosure;

3. is lawfully disclosed to the receiving party by a third party (other than other Users) without restriction on disclosure; or

4. is independently developed by the receiving party, which independent development can be shown by written evidence.

10.2 Subject to clause 10.4, each party shall hold Confidential Information in confidence and not make another's Confidential Information available to any third party, or use another's Confidential Information for any purpose other than the implementation of this Agreement.

10.3 Each party shall take all reasonable steps to ensure that another's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in breach of the terms of this Agreement.

10.4 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.

10.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

10.6 The User acknowledges that details of the Services, and the results of any performance tests of the Services, constitute TalentDesk's Confidential Information.

10.7 TalentDesk acknowledges that the User Data is the Confidential Information of the User.

10.8 Neither party shall make, or permit any person to make, any public announcement concerning this Agreement without the prior written consent of the other party (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.

10.9 The above provisions of this clause 10 shall survive termination of this Agreement, however arising.

11. Anti-Bribery

11.1 Each party shall not engage in any activity, practice or conduct which would constitute an offence under the UK Bribery Act 2010.

11.2 Each party shall comply with all other applicable laws, statutes, regulations, and codes relating to anti-bribery and anti-corruption.

12. Indemnity

12.1 The User shall defend, indemnify and hold harmless TalentDesk against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the User’s use of the Services, provided that:

1. the User is given prompt notice of any such claim;

2. TalentDesk provides reasonable co-operation to the User in the defence and settlement of such claim, at the User’s expense; and

3. the User is given sole authority to defend or settle the claim.

12.2 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:

1. TalentDesk is given prompt notice of any such claim;

2. the Customer provides reasonable co-operation to TalentDesk in the defence and settlement of such claim, at TalentDesk's expense; and

3. TalentDesk is given sole authority to defend or settle the claim.

12.3 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.

12.4 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:

1. a modification of the Services by anyone other than TalentDesk; or

2. the User's use of the Services in a manner contrary to the instructions given to the User by TalentDesk or the terms of this Agreement; or

3. the User's use of the Services after notice of the alleged or actual infringement from TalentDesk or any appropriate authority.

12.5 The foregoing and clause 13 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.

13. Limitation of Liability

13.1 Except as expressly and specifically provided in this Agreement:

1. the User assumes sole responsibility for results obtained from the use of the Services by the User, 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 User in connection with the Services, or any actions taken by TalentDesk at the User's direction;

2. 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

3. the Platform is provided to the User on an "as is" basis.

13.2 Nothing in this Agreement excludes the liability of TalentDesk:

1. for death or personal injury caused by TalentDesk's negligence; or

2. for fraud or fraudulent misrepresentation.

13.3 Subject to clause 13.1 and clause 13.2:

1. 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

2. TalentDesk's total aggregate liability in contract (including in respect of the indemnity at clause 12), 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 greater of £2,500 and an amount equal to the aggregate Fees paid by the Customer for the Services in the 3 months prior to the date the liability arose.

14. Terms and Termination

14.1 This Agreement shall start on the Effective Date and shall continue for a minimum period of one year after which it shall automatically renew for further one year periods on each anniversary of the Effective Date unless and until terminated by either party in accordance with this Agreement, unless otherwise stated in an Order Form.

14.2 A Provider shall be entitled to terminate this Agreement at any time by deleting his/her profile from the TalentDesk Platform.

14.3 Where the User is a Customer, either of TalentDesk and the Customer shall be entitled to terminate this Agreement by giving at least thirty days’ written notice to the other party, such notice to expire on an anniversary of the Effective Date.

14.4 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:

1. 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;

2. 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;

3. 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;

4. 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;

5. 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;

6. 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;

7. 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;

8. 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;

9. 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;

10. 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 14.2(c) to clause 14.2(i) (inclusive); or

11. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.

14.5 Without affecting any other right or remedy available to it, TalentDesk may suspend the Services or terminate this Agreement with immediate effect by giving written notice to the User if:

1. TalentDesk reasonably suspects any unauthorised use of the Platform by the User;

2. TalentDesk is unable to verify or authenticate any information provided by a User;

3. The User is in breach of clause 5.3;

4. TalentDesk reasonably believes that the User by way of the Platform has or may cause loss, damage or liability to other users or to TalentDesk.

14.6 On termination of this Agreement for any reason:

1. any licences granted under this Agreement shall immediately terminate and the User shall immediately cease all use of the Services;

2. 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;

3. TalentDesk may destroy or otherwise dispose of any of the User 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 User of the then most recent back-up of the User Data. TalentDesk shall use reasonable commercial endeavours to deliver the back-up to the User within 30 days of its receipt of such a written request, provided that the User 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 User shall pay all reasonable expenses incurred by TalentDesk in providing User Data; and

4. 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.

15. Force Majeure

TalentDesk shall have no liability to the User 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 User is notified of such an event and its expected duration.

16. Variation

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).

17. Waiver

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.

18. 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.

19. Entire Agreement

19.1 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.

19.2 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.

19.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.

20. Assignment

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, such consent not to be unreasonably withheld or delayed.

21. 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 agreed between the parties in writing), 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).

22. 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.

23. Notices

23.1 Any notice given under this Agreement shall be in writing and shall be effective upon delivery as follows: (a) if to User, when sent via email to the email provided in the Order Form; and (b) if to TalentDesk, when sent via email to legal@talentdesk.io with copies to xenios@talentdesk.io and support@talentdesk.io. Any such notice must specifically reference that it is a notice given under this Agreement.

23.2 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.

24. 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.

25. Jurisdiction

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 User in any jurisdiction in which the User has assets.