Terms & Conditions

MASTER SERVICE AGREEMENT

BACKGROUND

Fidio is the sole legal and beneficial owner and licensor of the Service and is willing to provide the Service to the Customer on the terms set out in this Agreement and the Order Form.

THE PARTIES AGREE AS FOLLOWS:

1. Interpretation

1.1 The words below shall, unless the context otherwise requires, have the following meanings: 

Agreement:

these terms and conditions, together with the Order Form, and any other document referenced in these terms.

Candidate:

any individual who is invited by the Customer to record answers to pre-set questions via the Service.

Commencement Date:

the date the Service will be made available to the Customer, as specified in the Order Form.

Confidential Information:

information in whatever form (including without limitation, in written, oral, visual or electronic form or on any magnetic or optical disk or memory and wherever located) relating to the business, customers, products, affairs or finances of Fidio, or trade secrets including, without limitation, the technical data and know-how relating to the business of Fidio or any of its suppliers, customers, agents, distributors, shareholders, management or business contacts, whether or not such information is marked confidential.

Customer:

the individual or entity entering into this Agreement to receive the Service from Fidio and whose details are set out in the Order Form.

Customer Data:

any data whether digital or otherwise, including confidential information provided by the Customer to Fidio.

Data Controller:

(i) “data controller” in the Data Protection Act 1998 in respect of Processing undertaken on or before 24 May 2018; and (ii) “controller” in accordance with the General Data Protection Regulation (EU) 2016/679 in respect of Processing undertaken on or after 25 May 2018.

Data Protection Legislation:

all applicable laws and regulations, as amended or updated from time to time, in the United Kingdom relating to data protection, the processing of personal data and privacy, including without limitation,(a) the Data Protection Act 1998; (b) (with effect from 25 May 2018) the General Data Protection Regulation (EU) 2016/679; (c) the Privacy and Electronic Communications (EC Directive) Regulations 2003 (as may be amended by the proposed Regulation on Privacy and Electronic Communications); and (d) any legislation that replaces or converts into United Kingdom law the General Data Protection Regulation (EU) 2016/679, the proposed Regulation on Privacy and Electronic Communications or any other law relating to data protection, the processing of personal data and privacy resulting from the United Kingdom leaving the European Union.

Data Subject:

as set out in, and will be interpreted in accordance with Data Protection Legislation. For avoidance of doubt, Data Subject refers to Candidates.

Fidio:

Fidio Limited, incorporated and registered in England and Wales with company number 10266732 whose registered office is at The White Building, 33 Kings Road, Reading, RG1 3AR.

Initial Term:

the minimum term of this Agreement as set out in the Order Form.

Intellectual Property Rights:

patents, rights to inventions, copyright and related rights, moral rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database 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 (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.

Order Form:

an order form for the Services signed by Fidio and the Customer which incorporates these terms and conditions.

Payment Terms:

immediately upon receipt of Fidio’s invoice, or such other period as may be specified in the Order Form. 

Personal Data:

as set out in, and will be interpreted in accordance with Data Protection Legislation.

Personal Data Breach:

the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, Personal Data transmitted, stored or otherwise Processed in connection with this Agreement or which relates to any Candidate.

Process:

as set out in, and will be interpreted in accordance with Data Protection Legislation and “Processed” and “Processing” will be construed accordingly.

Service:

access to Fidio’s platform, enabling Users to invite Candidates to record answers to questions set by the Customer.

Service Charges:

the fees specified in the Order Form payable by the Customer to Fidio for its access to the Service.

User:

any individual who is authorised by the Customer to use the Service, and who has been supplied a user account and password by the Provider for the Service.

2. Term

Subject to early termination in accordance with clause 9 (Termination), the Service shall be made available from the Commencement Date and will continue for the Initial Term set out in the Order Form. Upon expiry of the Initial Term, the Agreement shall automatically renew for periods equivalent to the Initial Term (each period a “Renewal Term”) unless terminated with not less than 30 days’ written notice to expire on the last day of the Initial Term or a Renewal Term, as applicable. The Initial Term and any Renewal Term shall be referred to as the “Term”.

 

3. The Service

3.1 In consideration of the Service Charges payable by the Customer to Fidio under the Agreement, Fidio grants to the Customer a non-exclusive licence for the Term (or such shorter period where earlier termination of this Agreement takes place in accordance with clause 9) to use the Service.

3.2 For the purposes of clause 3.1 above, the Customer shall be restricted in the use of Service as follows:-

a) the Customer may not allow any of the Company’s group companies or affiliates to use the Service unless specifically agreed in the Order Form;

b) the Customer must not use the Service for any unlawful or fraudulent behaviour, or use the Service in violation of any third party rights;
c) the Customer must not attempt or assist a third party to attempt to gain unauthorised access to the Service.

3.3 The Service may be improved or updated by Fidio from time to time during the Term free of charge. However, at Fidio’s discretion, additional features (“Additional Features”) may be made available by Fidio to the Customer during the Term for such additional fees as Fidio shall apply to the Additional Feature in question. Should the Customer wish to use the Additional Features, Fidio shall charge the relevant fee due. For the avoidance of doubt (i) Fidio are not obliged to provide any updates or improvements during the Term , and (ii) the Customer is not obliged to take any Additional Features unless the Customer expressly agrees to take up those Additional Features.

3.4 The Customer has no right to copy, adapt, reverse engineer, decompile, disassemble or modify the Service in whole or in part (or any software or systems which comprise the Service) except as required by law; and/or to the extent that a statutory director of Fidio provides express written consent

3.5 The Customer has no right to grant sub-licences of the Service, or to allow any third party to use the Service.

3.6 Fidio will use reasonable efforts to make the Service available during all normal UK business hours but will not be responsible for any planned downtime in the Service for maintenance or other administrative reasons, nor for Service unavailability or downtime beyond Fidio’s reasonable control.
 
3.7 Subject to the limited rights expressly granted hereunder, Fidio expressly reserves all rights, title and interest in and to the Service and any other materials or content provided as part of the Service, including all intellectual property rights. No rights are granted to the Customer hereunder other than as expressly set forth herein.

4. Technical Support
 
The Service Charges include basic support during normal UK office hours (Monday – Friday, 9.00am to 5.00pm excluding bank holidays) in respect of the Service by Fidio which is available by the Customer Representative named in the Order Form raising an issue with the Fidio via email. Fidio will usually respond within four working hours or as soon as reasonably practicable by phone or email but only to the Customer Representative.

5. Customer’s Obligations
 
5.1 The Customer acknowledges to Fidio that the fulfilment of the Customer’s duties set out in this clause 5 is necessary in order to enable Fidio to provide the Service and/or carry out its obligations under this Agreement.
5.2 The Customer must during the Term:-
a) provide a dedicated point of contact
b) co-operate in full with Fidio to enable and permit Fidio to implement and provide the Service in accordance with its obligations under this Agreement;
c) provide all required and/or reasonably requested information and data to Fidio in a prompt and timely fashion;
d) be responsible for the accuracy, quality and legality of any data supplied to Fidio to enable Fidio to provide the Service;
e) ensure each User’s compliance with this Agreement and all applicable laws and regulations in using the Service, including without limitation all applicable privacy and data protection regulations;
f) obtain any necessary consent required from any User to their use of the Service being monitored; and
g) prevent unauthorised access to the Service, notifying Fidio immediately of any such unauthorised access;
5.3 Failure to perform the Customers’ duties may (in the sole discretion of Fidio) lead to (a) suspension of the Service; (b) a withdrawal by Fidio of technical support services; and/or (c) termination of this Agreement. If Fidio terminates the Agreement, all sums due and owing to Fidio at that time shall be immediately payable and there shall be no repayment of any monies paid in advance at that time. Fidio cannot be liable for any failure to provide the Service where the Customer fails to fulfil the Customer’s duties.
5.4 Fidio may make available to the Customer from time to time other non-Fidio products or services. If the Customer takes such products or services, the Customer is responsible for agreeing any contractual provisions governing the use of those products or services with the third party provider concerned. Fidio is not responsible and does not warrant those products or services in any way.
5.5 User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
5.6 Fidio will not be responsible for, nor will Fidio vet or check the video material the Customer receives or stores when using the Service. Accordingly, the Customer accepts all responsibility for all video material received or stored when using the Service and will hold Fidio harmless in all respects for all losses, damages, costs and expenses Fidio may suffer in this respect.
5.7 The Customer acknowledges that it is its responsibility, and not that of Fidio, for:
a) ensuring that the process as well as all questions are in accordance with all applicable laws;
b) any claims brought by a Candidate relating to any hire or no-hire decision made by the Customer;
c) ensuring that the Customer’s hiring process is not discriminatory, including making alternate interview methods available to any Candidate that is not able to conduct an interview through the Service;
d) implementing the Customer’s own terms of use and privacy policy regarding the Customer’s relationship with Candidates, and including within the Customer’s terms of use and privacy policy provisions making it clear that the Customer, not Fidio, is responsible for any claims or liabilities relating to the Customer’s use of the Service (including but not limited to the processing of Candidate data); and
e) any claims relating to privacy or data protection laws.

6. Charges, Expenses and Payment
 
6.1 In consideration for receipt of the Service, the Customer shall pay the Service Charges to Fidio as specified in the Order Form. All amounts are payable in GBP unless otherwise specified. The Service Charges may be updated by Fidio from time to time with effect from the start of the next Renewal Term (if any) by giving the Customer not less than sixty (60) days’ notice in writing prior to the start of such Renewal Term.
6.2 The Customer will pay each invoice issued by Fidio within the Payment Terms without any set off or deduction of any kind. Unless otherwise stated in the Order Form, the Service Charges will be invoiced in advance on an annual basis. All fees and charges are exclusive of VAT. Where applicable Fidio shall charge VAT to the Customer at the prevailing rate.
6.3 Any discounts included in the Order Form are given at the sole discretion of Fidio and conditional on the Customer complying with its obligations under the Agreement. Should the Customer fail to comply with any of its obligations under the Agreement, any discounts or special terms may be withdrawn at any time by notice of Fidio to the Customer and the Customer shall be charged from the Commencement Date as if the discounts or special terms had not applied at any time.
6.4 If the Customer fails to pay any invoice within the Payment Terms, Fidio reserves the right to charge the Customer daily interest on the outstanding amount in accordance with the Late Payment of Commercial Debts (Interest) Act 1998 and the Customer agrees to pay on a full indemnity basis all legal costs incurred by Fidio in respect of recovering any amount due under this Agreement.
6.5 Without prejudice to any other rights Fidio may have in respect of the Customer’s default:
a) Fidio may in its discretion suspend the Service if the Customer does not pay the Fidio’s charges within the Payment Terms; or
b) Fidio may terminate this Agreement if the Customer does not pay the Service Charges provided Fidio has given the Customer five working days’ written notice to settle such outstanding charges and the Customer has failed to do so.
6.6 The Customer agrees that Fidio may send invoices to the Customer by email and will at all times notify Fidio of a current email address to which invoices may be sent. It shall not be permitted for the Customer to delay payment of any invoices which are due and owing due to a failure of the Customer to supply a valid email address or claim non-receipt of invoices due to administrative reasons.
6.7 For the avoidance of doubt, support or technical queries do not give the Customer a reason to delay or withhold payment of any fees.

7. Liability and Indemnities
 
7.1 During and after this Agreement, the Customer agrees to protect, indemnify, defend and hold harmless Fidio, and to the extent required from time-to-time by Fidio, (or its successors) its officers, agents, and employees, from and against any and all expenses, damages, claims (whether valid or invalid and whether deemed alleged or upheld), suits, losses, actions, judgments, liabilities, and costs (including legal fees on a full indemnity basis) arising out of, connected with, or resulting from:
a) the Customer’s negligence, misrepresentation or the breach of any obligation by the Customer under this Agreement;
b) any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission of the Customer or its employees; or
c) the Customer’s use of the Service.
7.2 Except as expressly stated in this Agreement, Fidio shall not have any liability to the Customer (or any other person) for any loss or damage whatsoever arising from or in connection with this Agreement or the use of the Service (whether or not in the manner permitted by this Agreement) or the development, modification or maintenance of the same.
7.3 Without prejudice to the generality of clause 7.2, Fidio shall have no liability whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise for any loss of profit, anticipated savings, loss of business opportunity or goodwill, loss of data, or for any indirect or consequential loss arising under or in connection with this Agreement, regardless of whether such loss or damage was reasonably foreseeable by the parties.
7.4 Notwithstanding any other provision of this Agreement, Fidio’s entire liability in respect of any claim or claims brought by the Customer hereunder shall be limited to an aggregate amount equal to the Service Charges paid by the Customer in the twelve months prior to the date the claim first arises.
7.5 The above exclusions shall apply to the fullest extent permissible at law but Fidio does not exclude liability for death or personal injury caused by the 
negligence of Fidio, its employees or agents, or for fraud or fraudulent misrepresentation.

8. Intellectual Property Rights
 
8.1 All Intellectual Property Rights in the Service belongs and shall belong to Fidio.
8.2 The Customer shall not (i) permit any third party to access the Service except as permitted herein or in the Order Form (ii) create derivate works based on the Service except as authorised herein, (iii) copy, frame or mirror any part of the Service (iv) reverse engineer the Service, or (v) access the Service in order to (a) build a competitive product or services, or (b) copy any features, functions or graphics.
8.3 The Customer shall keep confidential the Service and limit access to the Service to those of the Customer’s employees who are engaged in the use of the Service. The Customer shall inform all relevant employees that the Service is the Intellectual Property Rights of Fidio and constitutes Confidential Information of Fidio and the Customer shall take all such steps as shall be necessary to ensure such compliance by its employees.
8.4 The Customer agrees that:-
a) the Customer shall as soon as reasonably practicable notify Fidio in writing of any claim or action that the Service infringes the Intellectual Property Rights of a third party (“Infringement Claim”), of which it has notice;
b) the Customer shall not make any admission as to liability or compromise or agree to any settlement of any Infringement Claim without the prior written consent of Fidio which shall not be unreasonably withheld or delayed; and
c) Fidio shall, on its written request and at its own expense be entitled to have the conduct of or settle all negotiations and litigation arising from any Infringement Claim and the Customer shall, at Fidio’s request and expense, give Fidio all reasonable assistance in connection with those negotiations and such litigation.
8.5 Provided written notice is given to Fidio immediately upon the Customer being aware that a third party is alleging a claim against the Customer for breach of that party’s intellectual property rights which arises solely as a result of the use of the Services and Fidio’s intellectual property and further provided the Customer takes such action as Fidio may reasonably direct in writing to the Customer to defend such claim, Fidio shall reimburse the Customer for all reasonable costs and expenses save that:
a) the Customer must at all times take such action so as to reasonably mitigate the Customer’s costs and expense in respect of such claim(s); and
b) Fidio’s liability shall be limited by clause 7.

9. Termination
 
9.1 The Agreement shall commence on the Commencement Date and shall (subject to earlier termination in accordance with this clause 9) continue for the Initial Term and any successive Term.
9.2 Other than the expiry of the Term of the Agreement, this Agreement may be terminated only:-
a) immediately by Fidio if the Customer fails to pay any fee due under this Agreement;
b) immediately by the non-defaulting party if the other commits any material breach of any term of this Agreement;
c) immediately by Fidio if the Customer shall be unable to pay the Customer’s debts within the meaning of Section 123 of the Insolvency At 1986; and
d) on the convenience of Fidio by providing the Customer with thirty (30) days notice in writing at any time.
9.3 Termination in accordance with clause 9.2 shall be without prejudice to any other rights or remedies accrued prior to termination and in particular shall not relieve the Customer of the obligation to pay the Service Charges accrued or payable prior to the effective date of Termination.

10. Post Termination
 
10.1 On termination of the Agreement however caused, the Customer’s authorisation to use the Service will automatically cease and the Customer undertakes immediately to cease to use the Service.
10.2 The following provisions shall survive any termination or expiration of this Agreement: Clause 5, 6, 7, 8, 9.3, 10, 11, 12 and 13.

11. Confidentiality
 
Fidio acknowledges and undertakes that where any Customer Data is provided to Fidio as part of the Service:-
a) Fidio will use the Customer Data for the purpose of providing the Service. On termination of the Service, Fidio undertakes not to use or modify such Customer Data for its own purposes;
b) Fidio shall use reasonable endeavours to keep all Customer Data confidential except insofar as may be expressly authorised by the Customer or as may be required by law;
c) at any time on the Customer’s written request, or in any event if the Agreement terminates, Fidio will promptly return all Customer Data without retaining any copies or record thereof;
d) Fidio’s obligation in respect of Customer Data shall cease to be of force and effect in relation to any Data which is or comes into the public domain other than through Fidio’s default or which is disclosed by a third party under no duty of confidentiality;
e) Fidio confirms it is registered under the UK Data Protection Act and that Fidio will hold any Data supplied in accordance with the act and the General Data Protection Regulations where applicable;
PROVIDED ALWAYS that Fidio is entitled to use anonymised data belonging to the Customer to prepare and disclose trend data and other data to other customers or prospective customers subject to Fidio maintaining its confidentiality obligations in respect of such data.

12. Non Solicitation of Employees and Contractors
 
12.1 During the Term and for a period of 12 months following termination or expiry of the Agreement, the Customer shall not solicit or attempt to solicit (directly or indirectly) the employment or engagement of any employee or contractor of Fidio who has been employed or engaged by Fidio (directly or indirectly) at any time during the Term.
12.2 Should the Customer breach the restriction set out in clause 12.1, the Customer shall pay to Fidio a fee equivalent to the employee or contractor’s gross annual remuneration. Both parties agree that such payment represents a genuine pre-estimate of the loss suffered as a result of the solicitation.

13. Data Protection
 
13.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 13 is in addition to, and does not relieve, remove or replace, a party’s obligations under the Data Protection Legislation.
13.2 The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Data Controller and Fidio is the Data Processor.
13.3 Without prejudice to the generality of clause 13.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Fidio for the duration and purposes of this Agreement.
13.4 Without prejudice to the generality of clause 13.1, Fidio shall, in relation to any Personal Data Processed in connection with the performance by Fidio of its obligations under this Agreement:
(a) Process that Personal Data only on the written instructions of the Customer unless Fidio is required by applicable laws to otherwise Process that Personal Data;
(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 he 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) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of the Customer has been obtained and the following conditions have been fulfilled:
(i) the Customer or Fidio has provided appropriate safeguards in relation to the transfer;
(ii) the Data Subject has enforceable rights and effective legal remedies;
(iii) Fidio complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(iv) Fidio complies with reasonable instructions notified to it in advance by the Customer with respect to the Processing of the Personal Data;
(e) assist the Customer, at the Customer’s cost, 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;
(f) notify the Customer without undue delay on becoming aware of a Personal Data Breach;
(g) at the written direction of the Customer, delete or return personal data and copies thereof to the Customer on termination of the Agreement unless required by applicable law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause 13.

14. General
14.1 No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause or causes beyond its reasonable control and generally considered as force majeure.
14.2 Each party agrees and undertakes that, during the Term of this Agreement and thereafter, it will keep confidential all Confidential Information which may become known to such party form the other party and which relates to the other party or any of its affiliates or any company under common ownership, unless such information is public knowledge or already known to such party at the time of disclosure or subsequently becomes public knowledge other than by breach of this Agreement or subsequently comes lawfully into the possession of such party from a third party.
14.3 If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions will not be prejudiced.
14.4 Any amendment, waiver or variation of this Agreement shall be documented in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
14.5 All notice sent under this Agreement shall be delivered in writing.
14.6 By entering into this Agreement, the Customer confirms that it understands the capability of the Service and that the Customer is fully aware of and in agreement with the functionality of the Service.
14.7 This Agreement shall be governed by and construed in accordance with English law and each party hereby submits to the exclusive jurisdiction of the English courts.
14.8 Each party may reference the name of the other party as a customer or vendor and may use the logo of the other party in accordance with the other party’s standard guidelines.
14.9 The relationship of the parties shall be that of independent contractors.
14.10 This Agreement may be signed in counterparts, and by the parties to it on separate counterparts, each of which is an original however, all of which taken together shall constitute one and the same original instrument, notwithstanding any electronic transmission, printing and storage of copies of this Agreement from computers or printers. For clarity, facsimile signatures and signatures transmitted by PDF OR JPEG or other similar format shall be treated as original signatures.
14.11 This Agreement, including the Schedules, the Order Form and other documents (which shall include but not be limited to Fidio’s Terms of Use and Acceptable Use policy available on its website www.fidio.tv) contain the whole agreement between the parties and supersede all prior agreements, arrangements and understandings between the parties relating to that subject matter. To the extent of any conflict or inconsistency between the provisions of these terms and conditions and any other document, the order of precedence shall be as follows: 1) the Order Form; 2) these terms and conditions; 3) Fidio’s Terms of Use and Acceptable Use Policy; and 4) any other document referred to herein. Notwithstanding anything to the contrary, no terms or conditions stated in a Customer purchase order or in any other Customer documentation shall be incorporated into or form any part of this Agreement, and any such terms shall be null and void.

Fidio Limited – Company registration number: 10266732

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