General Terms and Conditions
1.1. The following definitions and rules of interpretation apply in this Agreement.
Agreement these terms and conditions and the applicable Order Form.
Change in Law any change after the Commencement Date in applicable law, statute, regulation, order, regulatory policy, guidance or industry code in any jurisdiction.
Charges all charges to be paid by the Customer to Sense which are detailed in the Order Form. Commencement Date as defined in clause 2.2.
Confidential Information all confidential information (however recorded, preserved or disclosed) disclosed by a party or its Representatives to the other party and that party's Representatives in connection with this Agreement, including the terms of this Agreement, any information that would be regarded as confidential by a reasonable business person relating to: (i) the business, affairs, customers, clients, suppliers, plans, intentions, or market opportunities of the disclosing party; and (ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party and any information or analysis derived from Confidential Information. Confidential Information shall exclude information: (a) generally available to the public (other than as a result of breach of confidentiality obligations); (b) available or which comes available to the receiving party on a non-confidential basis before disclosure; or (c) independently developed without access to such Confidential Information.
Customer Data the data supplied by the Customer or an End User to Sense pursuant to this Agreement.
Customer Materials the Customer Data together with any materials, designs, logos (or other brand identity), domain names, documentation, processes and procedures supplied by (or on behalf of) the Customer to Sense in connection with this Agreement.
End User(s) the individuals who use the Services on behalf of the Customer from time to time.
Extended Term as set out in the Order Form.
Force Majeure Event means the occurrence of any event beyond a party’s control including: (a) war, civil war, riot, civil commotion or armed conflict (or threat of); (b) terrorism; (c) nuclear, chemical or biological contamination; (d) earthquakes, fire, storm damage or severe flooding (if in each case it affects a significant geographical area); (e) interruption or failure of utility service; (f) any blockade or embargo (if in each case it affects a significant geographical area); and/or (g) pandemic or epidemic.
Initial Term as set out in the Order Form.
Intellectual Property Rights patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) 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 that subsist or will subsist now or in the future in any part of the world.
Order Form the order form which sets out the commercial information in respect of the Services being purchased by the Customer and which is subject to these terms and conditions.
Representatives employees, workers, agents, officers, advisers and other representatives of that party.
Restricted Person means a person that is (a) listed on, or owned and controlled by a person on any Sanctions list, (b) located in or incorporated under the laws of or owned or controlled by or acting on behalf of a person located in or incorporated under the laws of a country or territory which is the subject of Sanctions Legislation or (c) otherwise the target of Sanctions Legislation.
Sanctions Legislation means all and any legislation of the UK or the United States of America relating to sanctions of individuals, companies, other legal persons or countries.
Sense IPR all Intellectual Property Rights in, the Services, the Sense Platform, the Sense Materials and all other Intellectual Property Rights arising out of the performance of Sense's obligations under this Agreement.
Sense Materials any materials, designs, logos (or other brand identity), domain names, documentation, technical literature, user manuals, processes and procedures, information, programs, software, tools and codes supplied by Sense to the Customer or made available as part of the Services or the Sense Platform but excluding any Customer Materials.
Sense Platform means a website and/or platform operated by Sense and accessed by the Customer as part of the Services.
Services providing access to and use of the Sense Platform, and provision of HR related services as further detailed in the Order Form in accordance with the terms of this Agreement.
Term the Initial Term together with any Extended Term.
VAT value added tax chargeable under the Value Added Tax Act 1994 and any similar additional tax or any other similar turnover, sales or purchase tax or duty levied in any other jurisdiction.Working Days a day (other than a Saturday or Sunday or bank and/or public holiday in England or Wales).
1.2. In the case of conflict or ambiguity between the provisions of this Agreement and the Order Form then the terms of this Agreement shall take precedence.
1.3. Unless the context otherwise expressly requires, references to:
2.1. All Services provided by Sense shall be subject to the terms and conditions set out in this Agreement.
2.2. These terms and conditions shall be effective, incorporated into and form part of this Agreement on the earlier of:
2.3. No terms or conditions endorsed upon, delivered with or contained in the Customer's acknowledgement or acceptance of this Agreement or similar document shall form part of this Agreement and the Customer waives any right which it otherwise might have to rely on such terms and conditions.
3.1. Sense shall, during the Term perform the Services in accordance with the terms of this Agreement.
3.2. Sense shall use commercially reasonable endeavours to make sure the Services available in accordance with the Service Level Agreement.
3.3. The Services provided under this Agreement are provided “as is” without any representation or warranty of any kind, including without limitation, any warranty of non-infringement or fitness for a particular purpose. All statutory or implied warranties and conditions are excluded to the fullest extent possible.
3.4. The Sense Platform may contain hyperlinks or references to third party websites other than the Sense Platform. Any such hyperlinks or references are provided for the Customer’s convenience only. Sense has no control over third party websites and accepts no legal responsibility for any content, material or information contained in them. The display of any hyperlink and reference to any third party website does not mean that Sense endorses that third party's website, products or services. The Customer’s use of a third party site may be governed by the terms and conditions of that third party site.
4.1. Subject to payment in full of the Charges and continued compliance by Customer and the End Users with the terms of this Agreement, Sense hereby grants to the Customer on and subject to the terms and conditions of this Agreement a non-exclusive, non-transferable, revocable licence, without the right to grant sublicences, to permit End Users to access and use the Sense Platform and the Services solely for the Customer's internal business purposes for the Term.
4.2. The Customer shall be liable for all acts and omissions of any End Users.
4.3. In relation to the End Users, the Customer undertakes that:
4.4. The Customer shall not, and procures that End Users shall not:
4.5. The Customer shall use reasonable endeavours to prevent any unauthorised access to, or use of, the Sense Platform and notify Sense promptly of any such unauthorised access or use.
4.6. Subject to the terms of this Agreement and unless expressly stated otherwise, the Customer hereby grants to Sense a royalty free and non-exclusive, licence (including the right to sub-licence) during the Term to use the Customer Materials for the purpose of carrying out its obligations under this Agreement.
5.1. The Customer shall:
5.2. The Customer warrants that:
5.3. The Customer assumes all risk for selection and use of the Services and acknowledges that Sense does not have any responsibility for the Customer's use of the Services and the Sense Platform.
5.4. The Customer shall indemnify Sense against any and all claims, costs and expenses which Sense may incur resulting from the Customer or an End Users use of the Sense Platform and the Services other than in accordance with this Agreement.
6.1. Provided that such changes do not adversely affect the functionality of the Services, Sense shall be entitled to make changes to the Services or the Sense Platform from time to time.
6.2. In addition to its rights under clause 6.1 Sense shall be entitled to make changes to the Services from time to time for the purpose of:
6.3. Save pursuant to clause 6.1 and clause 6.2, all changes to the Services and terms of this Agreement shall be subject to agreement in writing signed by both parties.
7.1. The Customer shall pay the Charges to Sense in accordance with this clause 7.
7.2. The Customer shall make payment of each invoice immediately and this is due on the date of the invoice.
7.3. All fees, charges and other payments to be made by the Customer are exclusive of VAT and all other relevant taxes, for which the Customer shall be responsible.
7.4. The Charges are to be paid by the Customer in full and the Customer is not entitled by reason of set-off, counterclaim, abatement or other similar deduction to withhold payment of any amount due to Sense.
7.5. If any sum is not paid on or before the due date under this Agreement, the Customer shall pay Sense interest on the outstanding amount until payment is received in full and cleared funds at a rate equal to 3% above the Bank of England base rate from time to time in force, whether before or after judgement until the date actual payment is received. Such interest shall be compounded monthly.
8.1. All Intellectual Property Rights in the Customer Materials are, and shall remain, the property of the Customer. Sense acknowledges and accepts that it acquires no rights in or to Customer Materials other than those expressly granted by this Agreement.
8.2. Sense IPR are, and shall remain, the property of Sense or its licensors. The Customer acquires no rights in or to the Sense IPR other than those expressly granted by this Agreement.
8.3. The Customer shall at the request and expense of Sense do, and shall use all reasonable endeavours to procure that any necessary third party shall do, all necessary acts and execute all documents that Sense may reasonably request to perfect the right, title and interest of the Sense IPR.
8.4. The Customer shall promptly report to Sense any infringement of Sense IPR that comes to its attention. Without prejudice to the generality of the foregoing, the Customer shall ensure that each End User, prior to use of the Services and Sense Materials, is made aware that the Services and Sense Materials is proprietary to Sense.
8.5. Save where expressly agreed in writing by the parties, the Customer acknowledges and accepts that nothing in this Agreement shall prevent or restrict Sense from exploiting and or licensing any of the Sense IPR to any third party.
9.1. The parties acknowledge and agree that the terms of the Data Protection Addendum govern any processing of the Customer’s personal data by Sense under this Agreement and that the terms of the Data Processing Addendum are incorporated into this Agreement by reference. The latest version of Sense’s Data Protection Addendum available via Sense’s website at the date of each extension shall govern Sense’s processing of the Customer’s personal data during that Extended Term and, until a further updated version is published, all subsequent Extended Terms.
10.1. Each party shall keep the other party's Confidential Information confidential and shall not:
10.2. A party may disclose the other party's Confidential Information to (i) those of its Representatives who need to know such Confidential Information for the Permitted Purpose; (ii) any business or professional advisors of that Party; and (iii) any third party for the sole purpose of assessing a potential change of Control or investment into the business of that Party, provided that:
10.3. 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 reasonably possible and, where notice of disclosure is not prohibited and is given in accordance with this clause 10.3, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
10.4. On termination of this Agreement, each party shall on request from the other party:
11.1. Sense shall be entitled to use the Customer’s name, the fact that they work with the Customer and what Services they provide to the Customer in its marketing and promotional material (whether digital or paper format.
12.1. This clause 12 sets out the entire financial liability of Sense and the Customer (including any liability for the acts or omissions of its Representatives and including any settlements) to the other and to End Users in respect of any breach of this Agreement; any representation statement or tortious act or omissions (including negligence) arising under or in connection with this Agreement or any other liability to the other party whatsoever.
12.2. Nothing in this Agreement limits or excludes the liability of either party for:
12.3. Subject to clause 12.2, each party’s total aggregate liability in respect of all losses whether arising from contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement (including all non-contractual liability) shall in no event exceed the aggregate amount paid or payable by the Customer to Sense in the twelve (12) month period prior to the claim.
12.4. Subject to clause 12.2 except where expressly stated in this Agreement neither party shall have any liability to the other (howsoever arising, including any liability in tort) under or in connection with this Agreement for any:
13.1. This Agreement shall commence on the Commencement Date and shall continue for the Initial Term (unless terminated earlier in accordance with clause 14). The Agreement shall automatically extend for the Extended Term at the end of the Initial Term and at the end of each Extended Term thereafter, unless either party gives written notice to the other party, not later than three months before the end of the Initial Term or the relevant Extended Term, to terminate this Agreement at the end of the Initial Term or the relevant Extended Term, as the case may be.
14.1. Without prejudice to any rights or remedies that have accrued under this Agreement, either party may at any time terminate this Agreement (or any part thereof) or Sense may suspend the Services or any part thereof, with immediate effect by giving written notice to the other party if:
14.2. Either party can terminate this Agreement for convenience by giving the other party 30 days written notice. The Customer shall not be entitled to any refund of prepaid Charges if it terminates under this Clause.
15.1. Clauses 8, 10, 12, 15, 18, 19, 20, 22 and 24 shall survive expiry or termination of this Agreement.
15.2. Termination of this Agreement, for any reason, shall not affect the accrued rights, remedies, obligations or liabilities of the parties existing at termination.
15.3. On termination of this Agreement for any reason, the Customer shall immediately:
15.3.1. pay any outstanding unpaid invoices and interest due to Sense. Sense shall submit invoices for any Services that it has supplied or work completed, but for which no invoice has been submitted, and the Customer shall pay these invoices in accordance with clause 7.2; and
15.3.2. delete all Confidential Information, technical code, Sense Materials and anything relating to or forming part of the Sense IPR.
15.4. The licence granted under clause 4.1 of this Agreement shall immediately terminate.
16.1. The Customer shall not assign, novate or otherwise dispose of or create any trust in relation to any or all of its rights and obligations under this Agreement without the prior written consent of Sense (such consent not to be unreasonably withheld or delayed).
16.2. Sense may assign, novate or otherwise dispose of or create any trust in relation to any or all of its rights and obligations under this Agreement provided it gives written notice of such to the Customer as soon as reasonably practicable after such has occurred.
17.1. No failure or delay by a party to exercise any right or remedy provided under this Agreement shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy.
18.1. This Agreement (together with any non-disclosure agreement signed by the parties in respect of the subject matter of this Agreement) constitutes the entire agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter of this Agreement.
18.2. Each party acknowledges that, in entering into this Agreement, it does not rely on any statement, representation, assurance or warranty of any person (whether a party to this Agreement or not) other than as expressly set out in this Agreement.
19.1. If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
20.1. No person other than a party to this Agreement shall have any rights to enforce any term of this Agreement.
21.1. Neither party shall in any circumstances be in breach of this Agreement nor liable for delay in performing, or failure to perform, any of its obligations under this Agreement if such delay or failure results from a Force Majeure Event.
21.2. If a Force Majeure Event prevents or delays Sense or the Customer in their respective performance of a material part of their obligations under this Agreement for a period exceeding 90 days (or such other period as may be agreed between the parties), the party not affected by the Force Majeure Event may terminate this Agreement immediately on written notice to the other. Where this is the case, the Customer shall not be obliged to pay any Charges to the extent Sense was unable to perform Services after the date the Force Majeure Event first occurred, and Sense will refund to the Customer a corresponding proportion of Charges paid in advance which relate to Services which Sense was unable to perform.
22.1. Any notice required to be given pursuant to this Agreement shall be in writing and shall be delivered personally, or by prepaid post (by airmail post if to an address outside the country of posting), or by email to the relevant party at the address set out at the beginning of this Agreement or any other address as either party notifies to the other in writing from time to time.
22.2.1. if delivered personally, at the time of delivery; or
22.2.2. in the case of pre-paid first class post, three Working Days (or five Working Days if to an address outside the country of posting) from the date of posting; or
22.2.3. in the case of email, at the time the sender receives a read receipt from the recipient. Notwithstanding the foregoing in the case of any invoice sent by email, at the time the email entered the intended recipient's information systems provided that no error message indicating failure to deliver has been received by the sender.
23.1. This Agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
24.1. This Agreement shall be governed by and construed in accordance with English law and each party agrees to submit to the non-exclusive jurisdiction of the courts of England and Wales.