The terms of this Agreement along with the contents of the Access and Use Order govern the User’s access to the Platform and the use of the Services.
By placing the Access and Use Order with SSL the User agrees to the terms of this Agreement.
If the person entering into this Agreement on behalf of a company or other legal entity, then that person is representing to SSL that he has the authority to bind that company or entity and its affiliates to the terms of this Agreement. If there is a dispute over the authority of the person entering into the Agreement to bind the company or other legal entity to the Agreement, the Agreement will be ratified by the company or other legal entity’s use of the Platform and Services.
1. Agreed Terms
The following definitions and rules of interpretation apply in this Agreement
Access and Use Order: the order entered into by the User with SSL containing the relevant specific terms applicable to this Agreement.
Activity: an activity on the Platform that the Participant may register for.
Agreement: these standard contract terms and the contents of the Access and Use Order.
Availability Time: time during which an Activity can be accessed.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Charge(s): the charge(s) for access to the Platform and use of the Services in accordance with the Fair Usage Policy as set out in the Access and Use Order.
Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Credit: a Unit of Credit value set out in the Access and Use Order.
Data: as defined in Data Protection Legislation.
Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including without limitation the UK GDPR; the Data Protection Act 2018 (and regulations made thereunder) (DPA 2018); the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended; and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data (including, without limitation, the privacy of electronic communications); and the guidance and codes of practice issued by the Commissioner or other relevant regulatory authority and which are applicable to a party.
Fair Usage Policy: the User’s use of the Services (which includes, without limitation, the creation and hosting of User accounts, the provision of onboarding training and first-line support), as well as either the maximum number of Units of Credit or number of vacancies posted available to the User during the Period as set out in the Access and Use Order.
GDPR: General Data Protection Regulation 2016/679/EU.
Group Companies: those companies listed in the Access and Use Order and the User.
Group Company: any one of the Group Companies.
Information Security Policy: the policy available on request as amended from time.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, rights in software, trademarks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how), and all other intellectual property rights, 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.
Interest Rate: 4% a year above the Bank of England base rate from time to time, but at 4% a year for any period where the base rate is below 0%.
Organisational Unit(s): the department(s) of the User or the Group Companies as set out in the Access and Use Order.
Participant Data: all Data in respect of any Participant in response to an Activity.
Participant(s): person(s) registered for an Activity.
Payment Method: the selected method of payment as set out in the Access and Use Order.
Penalty Charges: the charges set out in the Access and Use Order.
Period: the period of this Agreement as set out in the Access and Use Order.
Personal Data: As defined in Data Protection Legislation and Annex A to the Access and Use Order.
Platform: the on-line platform through which the Services are accessed and delivered in respect of an Activity.
Reactivation Charge: as set out in the Access and Use Order
Rollout Date(s): the date(s) on which the Services are made available to any relevant Group Company during the Period as set out in the Access and Use Order. SSL has given any relevant Group Company written notice that the Services will go live and be accessible by that Group Company.
Rollout Order: the order in which the Services go live for each relevant Group Companies as shown in the Access and Use Order.
Services: the services set out in the Access and Use Order provided for the Period for the Charge.
SSL: Shortlister Solutions Limited (company number 07752916) whose registered office is at Suite 1A Swinegate Court East, York, YO1 8AJ and who operates under the trading names Shortlist.Me and Shortlister.
Unit of Credit: an amount of Credit which enables each relevant Group Company to complete or partially complete an Activity with a Participant.
UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the DPA 2018.
User: is the user shown in the Access and Use Order.
1.2 Clause and Schedule headings shall not affect the interpretation of this Agreement.
1.3 A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).
1.4 The Schedule forms part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedule.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 This agreement shall be binding on, and ensure to the benefit of, the parties to this agreement and their respective personal representatives, successors and permitted assigns, and references to any party shall include that party’s personal representatives, successors and permitted assigns.
1.7 References to clauses and the Schedule are to the clauses and the Schedule to this Agreement.
1.8 Any words following the terms including, include, in particular, for example or similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2. Commencement and Duration
2.1 This Agreement shall come into force on the date of the Access and Use Order but shall not be effective until the Roll Out Date or the first of the Roll Out Dates and shall continue for the Period.
2.2 Upon expiry of termination of the Period, any Units of Credit unused within that Period shall not roll-over to any further Period agreed between SSL and the User.
During the Period SSL shall supply each relevant Group Company and/or Organisational Unit with access to the Platform and the Services in the Rollout Order on the relevant Rollout Dates and in consideration the User shall pay the Charges pursuant to clause 7.
4.1 SSL shall, subject to clauses 4.2, 6.1 and 12, provide each relevant Group Company or Organisational Unit on and after its relevant Rollout Date with access to the Platform and the Services during the Period in accordance with the Fair Usage Policy.
4.2 The User acknowledges and agrees with SSL that SSL’s obligation under clause 4.1 shall not apply to times when access to the Platform and the Services is denied or prevented due to downtime for maintenance, repairs and upgrades to the Platform and the Services.
5. Password and Security
5.1 SSL shall provide each relevant Group Company or Organisational Unit on its
Rollout Date with a time-limited token in order for that Group Company or Organisational Unit to set its own access password to enable it to obtain access to the Platform and use of the Services.
5.2 Except as required by Group Company’s or Organisational Unit Services administrator(s), the password must be kept confidential and not lent, shared, transferred or otherwise misused by the relevant Group Company or Organisational Unit and the User shall procure compliance with this by its Group Companies or Organisational Unit.
5.3 If the User or any relevant Group Company or Organisation Unit becomes aware of any unauthorised access caused by Group Company’s or Organisational Unit’s access to the Platform, the User, the relevant Group Company or the Organisational Unit must notify SSL immediately in writing and fully cooperate with SSL to remedy the issue immediately.
5.4 SSL may change the password on a minimum of five (5) business days’ notice (except that less notice shall be permitted in the event of an immediate or emergent threat to the Platform) to any relevant Group Company or Organisational Unit.
6.1 Subject to clause 4.2, 6.2, 6.4 and clause 12, during the Period SSL shall supply the Services to the relevant Group Company or Organisational Unit from the relevant Rollout Date via the Platform however the Platform and the Services are provided on an ‘as is’ basis and SSL does not make any representation or give any warranty to any relevant Group Company or Organisational Unit that its use of the Platform and the Services shall be either free from interruptions, delays, problems, defects or viruses (or other damaging material) or that the Platform or the Services will be fit for any purpose or secure or that it will produce any Group Company’s or Organisational Unit’s desired outcome.
6.2 Effective from any relevant Rollout Date SSL warrants that the provision of the Services to any relevant Group Company or Organisational Unit are free of any back door, drop dead device, time bomb, Trojan horse, virus, or worm (as such terms are commonly understood in the software industry) or any other code, virus or bug designed or intended to have, or capable of performing, any of the following functions: (i) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network.
6.3 SSL warrants that it shall use all reasonable endeavours to comply with all laws and regulations applicable to SSL in its provision of the Services.
6.4 SSL shall, subject to clause 12 provide a 99% Availability Time for the Services; provided, however, that SSL’s obligations under this clause does not apply to any downtime resulting from (i) a failure in the User’s or a third party’s network infrastructure or (ii) scheduled updates, upgrades or maintenance and the User acknowledges that the User is responsible for determining whether it’s or any relevant Group Company’s or Organisation Unit’s software is suitable to support the User’s compliance with applicable laws and its use of the Platform and the Services.
6.5 SSL warrants that any downtime due to maintenance, repairs and upgrades shall be limited to sixty (60) minutes in total per month during the Period except where clause 12 applies in which case this warranty shall not apply.
6.6 SSL shall store data in compliance with its Information Security Policy.
6.7 SSL shall process such Participant Data that any relevant Group Company or Organisational Unit provides to it for the purposes of supplying the Services on or after any relevant Rollout Date.
6.8 The User acknowledges for itself and all of its other Group Companies or Organisational Units that SSL is under no duty to investigate the completeness, accuracy, sufficiency or legality of any Participant Data or any Activity.
6.9 Subject to SSL’s obligations in this Agreement, the User acknowledges that although SSL’s takes reasonable endeavors to ensure that Participants can take part in an Activity effectively with any relevant Group Company or Organisational Unit, SSL’s shall not be under any liability to any relevant Group
Company or Organisational Unit if a Participant is unable to effectively take part in or maintain an Activity and shall not be liable for a refund of any Credit in that case or in any other manner whatsoever unless a Credit Refund Event (as defined in the Schedule) occurs.
7.1 The User shall pay the whole of the Charge(s) to SSL by the Payment Method before the User or any relevant Group Company or Organisational Unit shall be granted access to the Platform.
7.2 Notwithstanding clause 11.2 in the event that the User or any Group Company or Organisational Unit permits any third party to have access to the Platform and the Services then the User shall pay to SSL the Penalty Charges within 1 Business Day of the SSL’s invoice for such Penalty Charges.
7.3 Where the Charges are paid annually, SSL reserves the right (at its discretion) to increase those Charges on an annual basis by up to 5% with effect from each anniversary of the Agreement.
7.4 SSL reserves the right (at its own discretion) to increase the Charges if the User requires additional Services that are not set out in the Access and Use Order (including without limitation, any additional dedicated training required by the User).
8. Data Protection
8.1 The parties will comply with all applicable requirements of the Data Protection Legislation. This clause 8 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation. In this clause 8, Applicable Laws means (for so long as and to the extent that they apply to SSL) the law of the European Union, the law of any member state of the European Union and/or Domestic UK Law; and Domestic UK Law means the UK GDPR and any other law that applies in the UK.
8.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the User is the Controller and SSL are the Processor.
8.3 Without prejudice to the generality of clause 8.1, the User will ensure that it has all necessary appropriate consents and notices in place to enable lawful collection of the Personal Data (as documented in Annex A to the Access and Use Order) by SSL on behalf of the User for the duration and purposes of this Agreement.
8.4 Without prejudice to the generality of clause 8.1, SSL shall, in relation to any Personal Data processed in connection with the performance by SSL of its obligations under this Agreement:
- (a) process that Personal Data only on the documented written instructions of the User unless SSL is required by Applicable Laws to otherwise process that Personal Data. Where SSL are relying on Applicable Laws as the basis for processing Personal Data, SSL shall promptly notify the User of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit SSL from so notifying the User.
- (b) 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, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
- (c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential;
- (d) assist the User in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
- (e) notify the User without undue delay on becoming aware of a Personal Data breach;
- (f) at the written direction of the User, delete or return Personal Data and copies thereof to the User on termination of the agreement unless required by Applicable Law to store the Personal Data;
- (g) maintain complete and accurate records and information to demonstrate its compliance with this clause 8.4;
- (h) within thirty (30) calendar days of a request from the User, allow its data processing facilities, procedures and documentation to be submitted for scrutiny, inspection or audit by the User (and/or its representatives, including its appointed auditors) in order to ascertain compliance with the terms of Clause 8 (Data Protection), and provide reasonable information, assistance and co-operation to the User, including access to relevant personnel and/or, on the request of the User, provide the User with written evidence of its compliance with the requirements of this Clause 8 (data protection);
- (i) only engage a sub-processor with the prior written consent of the Controller where such sub-processor has entered into a written contract with SSL which is no less stringent than this Agreement; and
- (j) be directly liable to the Controller for the performance of any of the sub-processor’s obligations in respect of its processing of Personal Data.
9. Limitation of Liability
9.1 Neither party excludes or limits liability to the other for:
- (a) fraud or fraudulent misrepresentation;
- (b) any breach by either party of its obligations in clause 8, and clause 10;
- (c) any matter for which it would be unlawful for the parties to exclude liability.
9.2 Subject to clause 9.1, SSL shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising) misrepresentation (whether innocent or negligent), restitution or otherwise for:
- (a) any loss (whether direct or indirect) of profits, business, business opportunities, revenue, turnover, reputation or goodwill;
- (b) any loss (whether direct or indirect) of anticipated savings or wasted expenditure (including management time); or
- (c) any loss or liability (whether direct or indirect) under or in relation to any other contract.
9.3 Subject to clause 9.1, SSL’s total aggregate liability in contract, tort (including negligence or breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent) restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement or any collateral contract shall in all circumstances be limited to the total amount of Charges paid by the User in the relevant twelve month period to the date of such claim.
10. Intellectual Property
10.1 SSL shall retain ownership of all of its Intellectual Property Rights to the Platform and all parts of the Services.
10.2 SSL grants to the User, and the User may grant to each relevant Group Company or Organisational Unit, a non-exclusive, non-transferable limited right to access the Platform and use the Services only for the purposes set out in this Agreement.
10.3 Each party shall keep the other fully and effectively indemnified against all costs, expenses, damages and losses (whether direct or indirect) including any interest, fines, legal and other professional fees and expenses awarded or incurred or paid by either of them as a result of or in connection with any claim brought against either of them by the other for actual or alleged infringement of that party’s Intellectual Property Rights as set out in this clause 10 arising out of, or in connection with, the receipt or use of the Services.
10.4 This clause 10 shall survive the termination of this Agreement.
11.1 This Agreement may be terminated by either party under the provisions of clause 2.
11.2 Notwithstanding clause 11.1 and without prejudice to any rights that SSL may have accrued under the Agreement or any of its rights or remedies, SSL may terminate this Agreement on written notice with immediate effect in the event that the User or any other Group Company and Organisational Unit accesses or knowingly permits access by any non authorised person under this Agreement to the Platform and uses the Services for any Activity which is illegal or immoral in the sole opinion of SSL or which brings or may bring the Platform, the Services or SSL into disrepute.
11.3 Notwithstanding clause 11.1, without prejudice to any rights that have accrued under this Agreement or any of its rights or remedies, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
- (a) the other party or any relevant Group Company or Organisational Unit commits a material breach of any term of this Agreement;
- (b) the other party or any relevant Group Company or Organisation Unit;
- (i) suspends, or threatens to suspend, payment of its debts;
- (ii) is unable to pay its debts as they fall due or admits inability to pay its debts; or
- (iii) (being a company) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- (c) the other party or any relevant Group Company or Organisational Unit commences negotiations with all or any class of its creditors with a view to re-scheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than (in the case of a company) 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;
- (d) 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 or any relevant Group Company 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;
- (e) 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 or any relevant Group Company;
- (f) the holder of a qualifying floating charge over the assets of that other party or any relevant Group Company has become entitled to appoint or has appointed an administrative receiver;
- (g) a person becomes entitled to appoint a receiver over the assets of the other party or any relevant Group Company or a receiver is appointed over the assets of the other party;
- (h) a creditor or encumbrancer of the other party or any relevant Group Company attaches or takes possession of, or a distress, execution, sequestration or other similar process is levied or enforced on or sued against, the whole or any part of the other party’s or any relevant Group Company’s assets and that attachment or process is not discharged within 14 days;
- (i) any event occurs or proceeding is taken with respect to the other party or any relevant Group Company in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 11.3(b) to clause 11.3(h) (inclusive); or
- (j) the other party or any relevant Group Company suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business.
11.4 Any provision of this Agreement that expressly or by implication is intended to come into or continue in force on or after termination of this agreement shall remain in full force and effect.
11.5 Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
11.6 On any termination of this Agreement for any reason, SSL shall remove the User’s and each Group Company’s and any Organisational Unit’s access to the Platform.
11.7 If a party or any relevant Group Company or Organisational Unit is required by any law, regulation, or government or regulatory body to retain any Data that it would otherwise be required to destroy under clause 8, it shall notify the other party in writing of that retention giving details of the Data that it must retain. That party or relevant Group Company or Organisational Unit shall not be in breach of clause 8 with respect to the retained Data, but clause 7 and clause 8 shall continue to apply to it.
12. Force Majeure
12.1 Neither party shall be in breach of this Agreement or otherwise liable for any failure or delay in the performance of its obligations if such delay or failure results from events, circumstances or causes beyond its reasonable control.
13.1 Each party undertakes, and you shall procure that your Educational Institution shall comply with this obligation, that it shall not at any time disclose to any person any confidential information concerning, in the case of the Shortlist.Me the Platform, the Services and its Intellectual Property Rights and in the case of you and your Educational Institution your/their Participant Data, Data and employment and recruitment policies and practises.
13.2 Each party may disclose the other party’s confidential information:
- (a) to its employees, officers, representatives, sub-contractors or advisors who need to know such information for the purposes of carrying out that party’s obligations under the Agreement.; and
- (b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
13.3 No party shall use the other party’s confidential information for any purpose other than to perform its obligations under this Agreement and you shall procure that the Educational Institutions comply with this obligation.
14.1 This Agreement is personal to the User and it shall not assign, transfer, mortgage, charge, sub-contract, declare a trust of or deal in any other manner with any of its rights and obligations under this Agreement.
14.2 The User confirms it is acting on its own behalf and not for the benefit of any other person except the Group Companies and Organisational Units.
14.3 SSL may at any time assign, transfer, mortgage, charge, sub-contract, declare a trust of or deal in any other manner with any of its rights and obligations under this Agreement without the consent of the User.
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 any right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16. 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.
17.1 Any notice or other communication given to a party under or in connection with this Agreement shall be in writing and shall be sent by email to the other party.
17.2 Any notice or communication shall be deemed to have been received at 9am on the next Business Day after sending.
17.3 This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.
18. Interest and Reactivation Charge
18.1 The User shall pay interest on any overdue Charges and any other sums due to SSL under this Agreement from the due date until payment is made in full both before and after judgment accruing daily at the Interest Rate.
18.2 SSL may suspend access to the Platform and use of the Services until payment of any overdue Charges or other sums due under this Agreement are paid in full.
18.3 All Charges and other overdue sums due to SSL under this Agreement shall be paid by the User or relevant Group Companies in full without set off, counterclaim, deduction or withholding.
18.4 In the event access to the Platform and use of the Services is suspended then SSL shall charge to the User or relevant Group Companies the Reactivation Charge which shall be payable within 1 Business Day of the date of SSL’s invoice for the Reactivation Charge.
19. Entire Agreement
This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understanding 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, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
Except as expressly provided in this Agreement, no variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
21.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of this Agreement.
21.2 If any provision or part-provision of this Agreement is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. No partnership or Agency
Nothing in this Agreement is intended to, or shall be deemed to, establish any partnership or joint venture between any of the parties, constitute any party the agent of another party, nor authorise any party to make or enter into any commitments for or on behalf of any other party.
23. Third Party Rights
23.1 A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.
23.2 The rights of the parties to terminate, rescind or agree any variation, waiver or settlement under this Agreement are not subject to the consent of any other person.
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.
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).