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;
e) any claims relating to privacy or data protection laws.
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.
9.1 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.
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.
14.1 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.