Terms of Service

Services Agreement with you, “The Customer”

This Master Agreement (“Agreement”) is between actajob Limited (“actajob”) and the Customer.
It should be read together with each Contract.

PART ONE – DEFINITIONS

In this Contract, the undernoted terms shall be defined, as follows:
1.1. “The Customer Data” means any electronic information stored in the database and files.
1.2. “Documentation” means the manual provided electronically by actajob for use with the Subscription Services, as periodically updated.
1.3. “Contract” means acceptance by the Customer of actajob’s terms of business and payment of the appropriate monthly subscription.
1.4. “Professional Services” means the training, consulting, development and other professional services identified on a Statement of Work, but does not include the Subscription Services.
1.5. “Statement of Work” means a document provided by actajob and signed by the Customer that describes the Professional Services to be provided by actajob to the Customer.
1.6. “Software” means the software whose functionality is described in the Contract.
1.7. “Subscription Services” means the hosted Customer experience solutions identified in a Contract, and any modifications periodically made by actajob, but does not include the Professional Services.
1.8. “Subscription Term” means the period of time during which actajob is required to provide the Customer with the Subscription Services.
1.9. “Work Product” means object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by actajob in providing the Professional Services to the Customer.

PART TWO – SUBSCRIPTION SERVICES

2. Access to the Subscription Services
2.1. actajob grants to the Customer a non-exclusive, non-transferable (except as provided in Section 17.3) licence to use the Subscription Services for The Customer’s internal business purposes only, subject to the following conditions:-
2.1.1. The Software is located on virtual servers that actajob has full administrative access rights to. The Customer may access the Software, but has no right to administer the servers or receive a copy of the object code or source code to the Software.
2.1.2. The Customer must have a reasonable speed Internet connection, and hardware and software that is compatible with the Subscription Services, as set out in the Documentation. None of these matters are actajob’s responsibility.
2.1.3. actajob may periodically upgrade and update the Subscription Services, in order to provide the Customer with a greater, evolving user experience. These changes shall occur automatically.
2.1.4. actajob has all required distribution rights to the intellectual property in the Software (except for third party components) and the Documentation.

3. Conditions of Use
3.1. The Subscription Services provided to the Customer are non-exclusive, non-transferable (except as provided in Section 17.3), and are for the Customer’s internal business use only. The Customer’s right to use the Subscription Services is subject to the following conditions:-
The Customer shall not:
3.1.1. Transfer to any other person any of its rights to use the Subscription Services;
3.1.2. Sell, license, rent or lease the Subscription Services;
3.1.3. Make the Subscription Services available to anyone who is not an “Authorised User”. An Authorised User is an employee of the Customer, or of a person to whom The Customer has outsourced services, who is authorised to access the Software as either a named or concurrent user;
3.1.4. Create any derivative works based upon the Subscription Services or Documentation;
3.1.5. Copy any feature, design or graphic in, or reverse engineer the Software;
3.1.6. Access the Subscription Services (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) if the Customer is an employee of a actajob competitor;
3.1.7. Use the Subscription Services in a way that violates any criminal or civil law;
3.1.8. Load test the Subscription Services in order to test scalability; or
3.1.9. Exceed any usage limits listed in the Contract.

4. The Customer Data
4.1. The Customer provides all data for use in the Subscription Services, and actajob is not obliged to modify or add to the Customer Data. The Customer is solely responsible for the content and accuracy of the Customer Data.
4.2. The Customer Data belongs to the Customer, and actajob makes no claim to any right of ownership in it.
4.3. actajob shall keep the Customer Data confidential in accordance with Section 14 of this Agreement.
4.4. actajob shall only be entitled to use the Customer Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. However, actajob:
4.4.1. may observe and report back to the Customer on the Customer’s usage of the Subscription Services, and make recommendations for improved usage of the Subscription Services;
4.4.2. may identify trends and publish reports on its findings provided the reports include data aggregated from more than one site of the Customer and do not identify the Customer; and
4.4.3. shall use reasonable endeavours to ensure that the data centre containing the Customer Data meets the following physical and electronic security requirements: (i) single point of entry; (ii) main access monitored with additional access for emergency purposes only; (iii) surveillance cameras in facility; (iv) access validation with identity check (v) log-in validation; (vi) creation of accounts only as verified by actajob or sub-contracted hosting provider; (vii) access to servers via encrypted means; and, (viii) servers running a secure firewall.
4.5 actajob shall use reasonable endeavours to comply with the principles of the EU Data Protection Directive 95/46, in relation to any “personal data” received by or originating from the Customer and the Customer’s clients, to the extent that the Directive applies to “data processors”.
4.6 actajob shall use reasonable endeavours to keep personal data secure and will protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and shall deal with the information only in accordance with the Customer’s instructions, provided they are reasonable and lawful.
4.7 actajob shall back-up the Customer Data once in each 24-hour period.

5. Subscription Services Warranties
5.1. actajob warrants that: (i) the Subscription Services will function substantially as described in the Documentation; and (ii) actajob owns or otherwise has the right to provide the Subscription Services to the Customer under this Agreement. The remedies set out in this Section 5 are the Customer’s exclusive remedies for breach of either warranty.
5.2. If the Subscription Services do not function substantially in accordance with the Documentation, actajob shall, at its option, either (i) modify the Subscription Services to conform to the Documentation; or (ii) provide a workaround solution that will reasonably meet the Customer’s requirements. If neither of these options is commercially feasible, either party may terminate the relevant Contract under this Agreement, in which case actajob shall refund to the Customer all fees pre-paid to actajob under the relevant Contract for unused Subscription Services.
5.3. If the normal operation, possession or use of the Subscription Services by the Customer is found to infringe any third party intellectual property right or actajob believes that this is likely, actajob shall, at its option, either (i) obtain a licence from such third party for the benefit of the Customer; (ii) modify the Subscription Services so that they no longer infringe; or (iii) if neither of these options is commercially feasible, terminate the relevant Contract under this Agreement, in which case actajob shall refund to the Customer all fees pre-paid to actajob under the relevant Contract for unused Subscription Services.
5.4. However, actajob has no warranty obligations for problems in the Subscription Services caused by any third party software or hardware, by accidental damage or by other matters beyond actajob’s reasonable control.

PART THREE – PROFESSIONAL SERVICES

6. Professional Services Warranties
actajob warrants that (i) the Work Product shall substantially conform to the Statement of Work; and (ii) the Professional Services shall be performed with reasonable skill, care and diligence. The remedies set out in this Section 6 are the Customer’s exclusive remedies for breach of either warranty. If the Professional Services do not conform to the Statement of Work or are not performed with reasonable skill, care and diligence, actajob shall re-perform the Professional Services to the extent necessary to correct the defective performance.

7. The Customer’s Responsibilities
The Customer shall provide actajob with all information, access, and full good faith cooperation reasonably necessary to enable actajob to deliver the Professional Services, and shall do anything that is identified in the Statement of Work as the Customer’s responsibility. If the Customer fails to do this, actajob shall be relieved of its obligations to the extent that the obligations are dependent upon the Customer’s performance.

8. Intellectual Property Ownership
actajob solely owns the intellectual property in the Work Product. Upon payment in full of any amounts due for Professional Services, the Customer shall have a non-exclusive, non-transferable (except as provided in Section 17.3) right to use the Work Product for the Customer’s internal business purposes. This right shall continue for so long as, and be subject to the same terms and conditions as the right to use the Subscription Services.

PART FOUR – GENERAL

9. Term of Agreement
This Agreement starts on the date that the Customer signs up for a Contract and ends when actajob no longer is obliged to provide the Customer with Subscription Services or Professional Services under any Contract.

10. Payments
10.1. The Customer shall pay the fees listed in, and in accordance with, the relevant Contract.
10.2. If the Customer initially purchases Subscription Services for a term, and subsequently orders an additional product, the additional purchase price will be paid by the Customer.

11. Termination and Suspension
11.1. Either party may terminate rights granted under a particular Contract if the other breaches any material term of the Contract (including a material term of this Agreement insofar as it applies to the Contract) and the breach is not cured within 30 days of written notice. The Customer’s breach of Section 3.9 of this Agreement shall be considered a material breach
11.2. Instead of terminating rights granted to a the Customer under a Contract, actajob may suspend the provision of Subscription Services to the Customer for a period of up to 45 days. At any time during that period, actajob may terminate the rights granted to the Customer.
11.3. Sections 3.4, 3.5, 4.3, 8, 9, 12, 13, 14, 15, 16 and 17 continue after this Agreement ends.
11.4. If actajob terminates a Contract under this Agreement because of non-payment by the Customer, all unpaid fees for the remainder of the Subscription Term immediately fall due for payment.
11.5. Upon termination of the Customer’s Subscription Service, actajob shall promptly provide the Customer with all the Customer Data in comma separated value (CSV) format according to a standard schema as defined by actajob. However, actajob may retain the Customer Data in backup media for an additional period of up to 12 months, or longer if required by law; Declaring that it shall be the Customer’s obligation to retain copies of its financial and other records sufficient to satisfy the requirements of HMRC or such other taxation authority.

12. Warranty Disclaimer
Except as expressly provided in this Agreement, the Subscription Services, Work Product and Professional Services are provided with no other warranties of any kind, and actajob disclaims all other warranties, express or implied, including without limitation any warranty of satisfactory quality or fitness for a particular purpose. actajob does not warrant that the use of the Subscription Services shall be uninterrupted or error-free.

13. Limitation of Liability
Neither party shall be liable under this Agreement for any indirect, special, incidental, punitive or consequential damages (including without limitation damages for loss of goodwill, work stoppage, computer failure or malfunction, lost or corrupted data, lost profits, lost business or lost opportunity), or any other similar damages under any theory of liability (whether in contract, delict, strict liability or any other theory), even if the other party has been informed of this possibility. The Customer assumes all responsibility for the selection of the Subscription Services, Software and Documentation necessary to achieve the Customer’s intended results, and for the use and results of the Subscription Services or Work Product. Each party’s total liability for any direct loss, cost, claim or damages of any kind related to the relevant Contract shall not exceed the amount of the fees paid or payable by the Customer to actajob under such relevant Contract during the 24 months before the event giving rise to such loss, cost, claim or damages. This limitation on liability was and is an express part of the bargain between actajob and the Customer and was a controlling factor in the setting of the fees payable to actajob. However, there is no limitation on direct loss, claim or damages arising as a result of an infringement of actajob’s intellectual property rights, or a breach of Section 14 of this Agreement, or in connection with a party’s indemnification obligations.

14. Confidentiality
14.1. The Subscription Services, Software, Documentation and Work Product contain valuable trade secrets that are the sole property of actajob, and the Customer agrees to use reasonable care to prevent other parties from learning of these trade secrets. The Customer shall take reasonable care to prevent unauthorised access to or duplication of the Subscription Services, Software, Documentation, and Work Product.
14.2. The Customer Data may include valuable trade secrets that are the sole property of the Customer. actajob shall take reasonable care to prevent other parties from learning of these trade secrets.
14.3. Sections 14.1 and 14.2 do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.

15. Indemnification by actajob
15.1. actajob shall indemnify and hold harmless the Customer, its affiliates, directors and employees from any damages finally awarded against the Customer (including, without limitation, reasonable costs and legal fees incurred by the Customer) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Services, Documentation or Work Product by the Customer infringes any copyright, trade secret or United Kingdom patent, (“Legal Action”). actajob shall provide reasonable assistance in the defence of such Legal Action.
15.2. However, actajob shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Subscription Services, Software or Work Product with software or products not supplied, or approved in writing by actajob; (ii) any repair, adjustment, modification or alteration to the Subscription Services by the Customer or any third party, unless approved in writing by actajob; or (iii) any refusal by the Customer to install and use a non-infringing version of the Subscription Services, or Work Product offered by actajob under Section 5.2(ii). Section 5.2 (ii) and this Section 15 state the entire liability of actajob with respect to any intellectual property infringement by the Subscription Services, Software or Work Product.
15.3. The Customer shall give written notice to actajob of any Legal Action no later than 30 days after first receiving notice of a Legal Action, and shall give copies to actajob of all communications, notices and/or other actions relating to the Legal Action. The Customer shall give actajob the sole control of the defence of any Legal Action, shall act in accordance with the reasonable instructions of actajob and shall give actajob such assistance as actajob reasonably requests to defend or settle such claim. actajob shall conduct its defence at all times in a manner that is not adverse to the Customer’s interests. The Customer may employ its own counsel to assist it with respect to any such claim. The Customer shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with actajob or its counsel, or because actajob fails to assume control of the defence. The Customer shall not settle or compromise any Legal Action without actajob’s express written consent. actajob shall be relieved of its indemnification obligation under Section 15 if the Customer materially fails to comply with Section 15.2.

16. Indemnification by the Customer
16.1. The Customer shall indemnify and hold harmless actajob, its affiliates, directors, and employees from any damages finally awarded against actajob (including, without limitation, reasonable costs and legal fees incurred by actajob) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the Customer Data, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Data (“Legal Claim”).
16.2. actajob shall give written notice to the Customer of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim, and shall give copies to The Customer of all communications, notices and/or other actions relating to the Legal Claim. actajob shall give the Customer the sole control of the defence of any Legal Claim, shall act in accordance with the reasonable instructions of the Customer and shall give The Customer such assistance as the Customer reasonably requests to defend or settle such claim. The Customer shall conduct its defence at all times in a manner which is not adverse to actajob’s interests. actajob may employ its own counsel to assist it with respect to any such claim. actajob shall bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with the Customer or its counsel, or because the Customer fails to assume control of the defence. actajob shall not settle or compromise any Legal Claim without the Customer’s express written consent. The Customer shall be relieved of its indemnification obligation under Section 16 if actajob materially fails to comply with Section 16.1.

17. Miscellaneous
17.1. This Agreement together with the Contract represents the entire agreement of the parties, and supersedes any prior or current agreements or understandings, whether written or oral. If there is a conflict between the Agreement and a Contract, the Contract shall prevail.
17.2. This Agreement shall be governed by the laws of Scotland (excluding its choice of law rules). The parties consent to the exercise of exclusive jurisdiction of the Courts of Scotland for any claim relating to this Agreement.
17.3. The Customer shall not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of actajob. actajob may not withhold such consent in the case of an assignation by the Customer of its rights and obligations to an entity that has acquired all, or substantially all, of the Customer’s assets, or to an assignation that is part of a genuine corporate restructure. Any assignation in breach of this Section is void.