Talentevo Terms & Conditions

Interpretation

1. Definitions. In these Conditions, the following definitions apply:
   Acceptance: the written acceptance by the Supplier of either

   1. an Order in accordance with Clause 2.2; or,
   2. a Confirmation in accordance with Clause 2.8.

   Access Code: a unique electronic code provided for by the Supplier to each Registered User which enables such Registered User to access the Proprietary Software and use the Services.

   Applicable Rules: means the rules governing access to and usage of the Proprietary Software as specified on the Website (and as updated from time to time).

   Additional Services: means any service requested or specified in an Order not comprising of Software Services.

   Business Day: a day (other than a Saturday, Sunday or public holiday) when banks in Dublin are open for business.

   Charges: the charges payable by the Customer for the supply of the Services in accordance with Clause 6.

   Commencement Date: has the meaning set out in Clause 2.2.

   Conditions: these terms and conditions as amended from time to time in accordance with Clause 12.8.

   Confirmation: a written confirmation issued by the Customer to the Supplier offering to continue the Contract following the expiry of the Trial.

   Contract: the contract between the Supplier and the Customer for the supply of Services in accordance with these Conditions.

   Customer: the person or firm who purchases Services from the Supplier.

   Customer Systems: means all computer hardware, software and communications equipment necessary used or owned by the Customer from time to time.

   Data Controller: has the meaning set out in Section 1(1) of the Data Protection Acts 1988 and 2003

   Data Processor: has the meaning set out in Section 1(1) of the Data Protection Acts 1988 and 2003

   Data Subject: means an individual who is the subject of Personal Data.

   Deliverables: the proprietary data of the Customer (and any other deliverables) to be uploaded by the Customer onto the Proprietary Software.

   Intellectual Property Rights: all patents, rights to inventions, utility models, copyright and related rights, trade marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, database right, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world.

   Hosting System: Microsoft Windows Azure (or any other data storage system selected by the Supplier for the delivery of the Services).

   Order: the Customer’s order for Services as set out in any Order Form completed by the Customer.

   Order Form: means any form produced by the Supplier for the ordering of Services and whether accessed through the Website or otherwise furnished to the Customer by the Supplier.

   Personal Data: has the meaning set out in section 1(1) of the Data Protection Acts 1988 and 2003 and relates only to personal data comprised within Deliverables or any part of such personal data comprised within the Deliverables, in respect of which the Customer is the Data Controller and in relation to which the Supplier is providing Services under this Contract.

   Privacy Statement: means the privacy statement maintained on the Website as updated and amended from time to time.

   Processing: has the meaning set out in section 1(1) of the Data Protection Acts 1988 and 2003

   Proprietary Software: the proprietary software of the Supplier known as Talentevo together with updates, modifications and enhancements developed by the Supplier from time to time.

   Registered User: any employee of the Customer who has been registered by the Supplier as authorised to access the Services and use the Proprietary Software and has been issued with an Access Code.

   Services: collectively the Software Services and the Additional Services.

   Software Services: the provision of a limited, non exclusive, non exclusive licence to access and use the Proprietary Software subject always to the provisions of the Access Rules.

   Specifications: the description of technical specifications necessary to safely and securely enable access to the Proprietary Software, the uploading of any Deliverables and the supply of the Services as specified by the Supplier on the Website from time to time.

   Supplier: Talentevo Limited, a limited liability company registered in Ireland with company number 486255.

   Supplier Materials: all materials, equipment, documents, information and other property of the Supplier provided or supplied to the Customer as part of the Additional Services.

   Trial: the 30 day free trial of the Services as promoted on the terms and conditions set forth on the Website.

   Website: www.talentevo.com

2. Construction. In these Conditions, the following rules apply:

   1. a person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
   2. a reference to a party includes its, successors or permitted assigns;
   3. a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
   4. any phrase introduced by the terms including, include, in particular or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding those terms;
   5. a reference to writing or written includes faxes and e-mails; and,

Basis of contract

1. The Order constitutes an offer by the Customer to purchase Services in accordance with these Conditions.

2. The Order shall only be deemed to be accepted when the Supplier issues an Acceptance at which point and on which date the Contract shall come into existence (Commencement Date).

3. The Contract constitutes the entire agreement between the parties. The Customer acknowledges that it has not relied on any statement, promise or representation made or given by or on behalf of the Supplier which is not set out in the Contract.

4. Any samples, demonstrations, descriptive matter or advertising issued by the Supplier, and any descriptions or illustrations contained on the Website (or any of the Supplier’s catalogues, brochures or similar), are issued or published for the sole purpose of giving an approximate idea of the Services described in them. They shall not form part of the Contract or have any contractual force.

5. These Conditions apply to the Contract to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.

6. Any quotation given by the Supplier shall not constitute an offer, and is only valid for a period of 20 Business Days from its date of issue.

7. In the event that the Customer participating in a Trial, the Contract shall last for a period of thirty (30) days from the date of the Acceptance.

8. At the conclusion of the Trial, the Customer will be asked to confirm whether it wishes to be provided with the Services on a paid basis. In the event that the Customer provides a Confirmation, then the Customer will be requested to confirm invoicing and payment methods with the Supplier. In the event that the Supplier accepts such invoicing and payment methods, it shall issue an Acceptance to the Customer and this Contract shall continue in full force and effect as and from the Commencement Date, until otherwise terminated in accordance with these Conditions.

9. If at the conclusion of the Trial, the Customer fails, refuses or neglects to provide a Confirmation, then the Contract shall terminate and the provisions of Clause 11 shall apply.

Supply of services

1. The Supplier shall supply the Services to the Customer in accordance with the Specification in all material respects.

2. The Supplier shall use all reasonable endeavours to meet any performance dates specified in the Order, but any such dates shall be estimates only and time shall not be of the essence for performance of the Services.

3. The Supplier shall use all reasonable endeavours to ensure that the Services are available to Customer provided always that the Supplier shall have no liability to the Customer or obligation to provide the Services in the event of the occurrence of any of the following:

   1. any network failures, external to the Supplier (including but limited to the Hosting System); or,
   2. any scheduled or emergency maintenance of the Proprietary Software, the Website, the Hosting System or any computing systems and networks on which the Proprietary Software is hosted (provided always that the Supplier shall where reasonably possibly, plan any scheduled maintenance (within the direct control of the Supplier) outside of those hours considered to be high volume and provide prior notice to the Customer of any such scheduled maintenance likely to result in any outage of the Services); or,
   3. server over-utilisation due to unforeseen increase in traffic by a client and/or permitted or unauthorised users.

4. The Supplier shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and the Supplier shall notify the Customer in any such event.

5. The Supplier warrants to the Customer that the Services will be provided using reasonable care and skill.

Data protection

1. Supplier’s Obligations

   1. The Customer and the Supplier acknowledge that for the purposes of the Data Protection Acts 1988 and 2003 the Customer is the Data Controller and the Supplier is the Data Processor in respect of any Personal Data. The Customer also acknowledges that insofar as it may be required to register as a Data Controller with the Data Protection Commissioner under the Data Protection Acts 1988 and 2003 (and as a corollary the Supplier is required by law register as a Data Controller) the Supplier has already effected a generic registration as a Data Processor with Data Protection Commissioner. (Proof of the Supplier’s registration with the Data Protection Commissioner will be provided to the Customer upon a request in writing made by the Customer to the Supplier).
   2. The Supplier shall process the Personal Data only in accordance with, and subject to, the Customer’s instructions as received from time to time and shall not process the Personal Data for any purpose other than those authorised and instructed by the Customer.
   3. For the purposes of the Contract (but without limitation to any other form that such instructions and authorisation of the Customer may take) the Customer will be deemed to have authorised and instructed the Supplier to process Personal Data as and from the time the Customer (or any employees, contractors or agents acting on its behalf) first uses any of the Software Services.

2. Post Termination Deletion of Deliverables
   Upon the termination of this Contract for any reason and subject to Clause 11(d), the Supplier shall without further notification to the Customer and in accordance with its obligations under the Data Protection Acts 1988 and 2003 permanently delete all Deliverables, including any such Personal Data contained within the Deliverables, which has been uploaded to or is stored on the Hosting System and/or the Proprietary Software provided always that this Clause shall only operate to oblige the Supplier to delete active content which the Supplier has the direct power and ability to delete.

3. Warranties

   1. Each party warrants to the other that it will process the Personal Data in compliance with all applicable laws, enactments, regulations, orders, standards and other similar instruments.
   2. Each party warrants to the other that it will comply with the obligations upon it in relation to security measures which arise under, or which are equivalent to those arising under, Section 2(1)(d) of the Data Protection Acts 1988 and 2003.

4. Indemnity

   1. The Customer acknowledges that the Supplier is reliant on the Customer for direction as to the extent to which the Supplier is entitled to use and process the Personal Data. Consequently, the Supplier will not be liable for any claim brought by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions.
   2. In the event that any claim is brought against the Supplier by a Data Subject arising from any action or omission by the Supplier, to the extent that such action or omission resulted directly from the Customer’s instructions, the Customer shall indemnify and keep indemnified and defend at its own expense the Supplier against all costs, claims, damages or expenses incurred by the Supplier or for which the Supplier may become liable due to any failure by the Customer or its employees or agents or contractors to comply with any of its obligations under this Contract.

5. Appointment of subcontractors

   1. The Supplier may authorise a third party (sub-contractor) to process the Personal Data provided that the sub-contractor’s contract:
      1. is on terms which are substantially the same as those set out in this Contract; and
      2. terminates automatically on termination of this Contract for any reason.

Customer’s obligations

1. The Customer shall:

   1. ensure that the scope of any Services requested together with any information submitted in any Order are complete and accurate;
   2. co-operate with the Supplier in all matters relating to the Services;
   3. provide the Supplier, its employees, agents, consultants and subcontractors, with access to the Customer Systems (and if necessary access to the Deliverables, premises, office accommodation and other facilities as reasonably required by the Supplier);
   4. provide the Supplier with any such other information and materials as the Supplier may reasonably require in order to supply the Services, and ensure that all such information and materials are accurate in all material respects;
   5. obtain, prepare and maintain all Customer Systems;
   6. ensure that the Customer Systems comply at all times with the Specifications,
   7. upload the Deliverables from the Customer Systems using the Proprietary Software onto the Hosting System in a manner which at all times complies with the Specifications;
   8. ensure that all Deliverables are uploaded onto the Proprietary Software in a lawful, accurate, safe and secure manner in all material respects;
      1. obtain and maintain all necessary licences, permissions and consents which may be required before the date on which the Services are to commence;
      2. keep and maintain the Supplier Materials at the Customer’s premises in safe custody at its own risk, maintain the Supplier Materials in good condition until returned to the Supplier, and not dispose of or use the Supplier Materials other than in accordance with the Supplier’s written instructions or authorisation;
   9. immediately notify the Supplier in the event of the occurrence of any breach of security of the Customer Systems or unauthorised usage of the Services; and,
      1. comply at all times with all terms and conditions specified on the Website, any notifications or guidance posted on the Website and any amendments to the Conditions, the Privacy Statement, the Specifications, the Applicable Rules or any other rules or similar as posted on the Website from time to time and whether arising as a result in any change of law or and shall not by act or omission permit anything to be done which would result in any breach of any of the foregoing.

2. If the Supplier’s performance of any of its obligations under the Contract is prevented or delayed by any act or omission by the Customer or failure by the Customer to perform any relevant obligation, including but not limited to those specified at Clause 5.1 (Customer Default), then:

   1. the Supplier shall without limiting its other rights or remedies have the right to immediately suspend, without warning, the continued performance of the Services until the Customer remedies the Customer Default, and to rely on the Customer Default to relieve it from the performance of any of its obligations to the extent the Customer Default prevents or delays the Supplier’s performance of any of its obligations;
   2. the Supplier shall not be liable for any costs or losses sustained or incurred by the Customer arising directly or indirectly from the Supplier’s failure or delay to perform any of its obligations as set out in this Clause 5.2;
   3. the Customer shall reimburse the Supplier on written demand for any costs or losses sustained or incurred by the Supplier arising directly or indirectly from the Customer Default.

Charges and payment

1. The Charges for the Services shall be as specified and particularised in the Acceptance

2. The Customer shall pay each invoice submitted by the Supplier:

   1. within 30 days of the date of the invoice; and
   2. in full and in cleared funds to a bank account nominated in writing by the Supplier, and
   3. time for payment shall be of the essence of the Contract.

3. All amounts payable by the Customer under the Contract are exclusive of amounts in respect of value added tax chargeable for the time being (VAT). Where any taxable supply for VAT purposes is made under the Contract by the Supplier to the Customer, the Customer shall, on receipt of a valid VAT invoice from the Supplier, pay to the Supplier such additional amounts in respect of VAT as are chargeable on the supply of the Services at the same time as payment is due for the supply of the Services.

4. Without limiting any other right or remedy of the Supplier, if the Customer fails to make any payment due to the Supplier under the Contract by the due date for payment (Due Date), the Supplier shall have the right to charge interest on the overdue amount at the rate of 10% per cent per annum accruing on a daily basis from the Due Date until the date of actual payment of the overdue amount, whether before or after judgment, and compounding quarterly.

5. The Customer shall pay all amounts due under the Contract in full without any deduction or withholding except as required by law and the Customer shall not be entitled to assert any credit, set-off or counterclaim against the Supplier in order to justify withholding payment of any such amount in whole or in part. The Supplier may, without limiting its other rights or remedies, set off any amount owing to it by the Customer against any amount payable by the Supplier to the Customer.

Intellectual property rights

1. All Intellectual Property Rights in or arising out of or in connection with the Proprietary Software, the Supplier Materials and the Services are owned by the Supplier.

2. The Customer acknowledges that, in respect of any third party Intellectual Property Rights, the Customer’s use of any such Intellectual Property Rights is conditional on the Supplier obtaining a written licence from the relevant licensor on such terms as will entitle the Supplier to license such rights to the Customer.

Confidentiality

A party (Receiving Party) shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to the Receiving Party by the other party (Disclosing Party), its employees, agents or subcontractors, and any other confidential information concerning the Disclosing Party’s business or its products or its services which the Receiving Party may obtain. The Receiving Party shall restrict disclosure of such confidential information to such of its employees, agents or subcontractors as need to know it for the purpose of discharging the Receiving Party’s obligations under the Contract, and shall ensure that such employees, agents or subcontractors are subject to obligations of confidentiality corresponding to those which bind the Receiving Party. This Clause 8 shall survive termination of the Contract.

Limitation of liability: THE CUSTOMER’S ATTENTION IS PARTICULARLY DRAWN TO THIS CLAUSE

1. Nothing in these Conditions shall limit or exclude the Supplier’s liability for:

   1. death or personal injury caused by its negligence, or the negligence of its employees, agents or subcontractors; or,
   2. fraud or fraudulent misrepresentation.

2. Subject to Clause 9.1:

   1. the Supplier shall under no circumstances whatever be liable to the Customer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, or any indirect or consequential loss arising under or in connection with the Contract or arising through any breach of duty or applicable law or act or omission of the provider of the Hosting System; and,
   2. the Supplier’s total liability to the Customer in respect of all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the amount paid by the Customer to the Supplier pursuant to the Contract in the twelve month period immediately preceding the occurrence of the event which is alleged to have resulted in the Customer suffering loss.

3. Except as set out in these Conditions, all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Contract.

4. This Clause 9 shall survive termination of the Contract.

Termination

1. Without limiting its other rights or remedies, each party may terminate the Contract with immediate effect by giving written notice to the other party if:

   1. the other party commits a material breach of the Contract and (if such a breach is remediable) fails to remedy that breach within 20 Business Days days of that party being notified in writing of the breach;
   2. 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 (being a company) is deemed unable to pay its debts within the meaning of section 214 of the Companies Act 1963 or (being an individual) is unable to pay his debts or appears to have no reasonable prospect of so doing, or (being a partnership) has any partner to whom any of the foregoing apply;
   3. 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;
   4. 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 (being a company);
   5. the other party (being an individual) is the subject of a bankruptcy petition or order;
   6. 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 its assets and such attachment or process is not discharged within 14 days;
   7. an application is made to court, or an order is made, for the appointment of an examiner or if a notice of intention to appoint an examiner is given or if an examiner is appointed over the other party (being a company);
   8. a floating charge holder over the assets of that other party (being a company) has become entitled to appoint or has appointed an administrative receiver;
      1. 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;
      2. 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 10.1(b) to Clause 10.1(i) (inclusive);
   9. the other party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; or
      1. the other party (being an individual) dies or, by reason of illness or incapacity (whether mental or physical), is incapable of managing his own affairs or becomes a patient under any mental health legislation.

2. Without limiting its other rights or remedies, the Supplier may terminate the Contract with immediate effect by giving written notice to the Customer if the Customer fails to pay any amount due under this Contract on the due date for payment.

3. Without limiting its other rights or remedies, each party shall have the right to terminate the Contract by giving the other party 1 months’ written notice.

4. Without limiting its other rights or remedies, the Supplier shall have the right to suspend provision of the Services under the Contract or any other contract between the Customer and the Supplier if the Customer becomes subject to any of the events listed in Clause 10.1(b)) to Clause 10.1(l), or the Supplier reasonably believes that the Customer is about to become subject to any of them, or if the Customer fails to pay any amount due under this Contract on the due date for payment.

Consequences of termination

On termination of the Contract for any reason:

1. the Customer shall immediately pay to the Supplier all of the Supplier’s outstanding unpaid invoices and interest and, in respect of Services supplied but for which no invoice has been submitted, the Supplier shall submit an invoice, which shall be payable by the Customer immediately on receipt;

2. the Customer shall return all of the Supplier Materials to the Supplier. If the Customer fails to do so, then the Supplier may enter the Customer’s premises and take possession of them. Until they have been returned, the Customer shall be solely responsible for their safe keeping and will not use them for any purpose not connected with this Contract;

3. the Supplier shall cease rendering the Services and shall take steps to ensure that the Customer shall no longer be able to access the Proprietary Software including the cancellation of all Access Codes;

4. the Supplier shall not be under any obligation or liability to permit access to or to return any Deliverables to the Customer until such time as all payments referred to at Clause 11(a) have been received in full by the Supplier. In circumstances where the Deliverables have not been returned to the Customer due to such non-payment, the Deliverables will (in due course and at a time of the Supplier’s election) be permanently deleted from the Supplier’s system (including the Hosting System and/or the Proprietary Software) in accordance with the Supplier’s obligations under the Data Protection Acts 1988 and 2003;

5. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall not be affected, including the right to claim damages in respect of any breach of the Contract which existed at or before the date of termination or expiry; and,

6. Clauses which expressly or by implication have effect after termination shall continue in full force and effect.

General

1. Force majeure:

   1. For the purposes of this Contract, Force Majeure Event means an event beyond the reasonable control of the Supplier including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport 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 or default of suppliers or subcontractors.
   2. The Supplier shall not be liable to the Customer as a result of any delay or failure to perform its obligations under this Contract as a result of a Force Majeure Event.
   3. If the Force Majeure Event prevents the Supplier from providing any of the Services for more than 8 weeks, the Supplier shall, without limiting its other rights or remedies, have the right to terminate this Contract immediately by giving written notice to the Customer.

2. Assignment and subcontracting:

   1. The Supplier may at any time assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights under the Contract and may subcontract or delegate in any manner any or all of its obligations under the Contract to any third party or agen
   2. The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, subcontract or deal in any other manner with all or any of its rights or obligations under the Contract.

3. Notices:

   1. Any notice or other communication required to be given to a party under or in connection with this Contract shall be in writing and shall be delivered to the other party personally or sent by prepaid post, recorded delivery or by commercial courier, at its registered office (if a company) or (in any other case) its principal place of business, or sent by fax to the other party’s main fax number, or by e-mail to the other party’s e-mail address.
   2. Any notice or other communication shall be deemed to have been duly received if delivered personally, when left at the address referred to above or, if sent by pre-paid post or recorded delivery, at 12pm on the third Business Day after posting, or if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed, or if sent by fax, on the next Business Day after transmission, or if by e-mail, and the sending email system confirms the notice was delivered successfully, the notice is deemed to be received by the other party on the day of that confirmation (provided that such day is a Business Day and if not a Business Day, then on the next day which is a Business Day).
   3. This Clause 12.3 shall not apply to the service of any proceedings or other documents in any legal action.

4. Waiver:

   1. A waiver of any right under the Contract is only effective if it is in writing and shall not be deemed to be a waiver of any subsequent breach or default. No failure or delay by a party in exercising any right or remedy under the Contract or by law shall constitute a waiver of that or any other right or remedy, nor preclude or restrict its further exercise. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
   2. Unless specifically provided otherwise, rights arising under the Contract are cumulative and do not exclude rights provided by law.

5. Severance:

   1. If a court or any other competent authority finds that any provision of the Contract (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed deleted, and the validity and enforceability of the other provisions of the Contract shall not be affected.
   2. If any invalid, unenforceable or illegal provision of the Contract would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.

6. No partnership: Nothing in the Contract is intended to, or shall be deemed to, constitute a partnership or joint venture of any kind between any of the parties, nor constitute any party the agent of another party for any purpose. No party shall have authority to act as agent for, or to bind, the other party in any way.

7. Third parties: A person who is not a party to the Contract shall not have any rights under or in connection with it.

8. Variation: Except as set out in these Conditions, any variation, including the introduction of any additional terms and conditions, to the Contract, shall only be binding when agreed in writing and signed by the Supplier.

9. Governing law and jurisdiction: This Contract, 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, Irish law, and the parties irrevocably submit to the exclusive jurisdiction of the courts of Ireland.