TalentPools Terms and Conditions
Last Updated 30th December 2021.
PARTIES
(1) Crowdskills Ltd, incorporated and registered in England and Wales with company number 09050188 whose registered office is at Impact Hub, 34b York Way, Kings Cross, London N1 9AB trading as TalentPools (Supplier)
(2) You (Customer)
BACKGROUND
(A) The Supplier has developed a software platform which enables the development and hosting of a freelancer marketplace platform where users buy and sell services to other users.
(B) The Customer wishes to use the Supplier’s software platform.
(C) The Supplier has agreed to provide and the Customer has agreed to take and pay for access to the Supplier’s software platform subject to the terms and conditions of this Agreement.
CLAUSES
Clause 1 Definitions and Interpretations
Clause 2 Licence to Use the TalentPools Platform
Clause 3 Configuration Service
Clause 4 General Services
Clause 5 Customer Data
Clause 6 Marketplace
Clause 7 Data Protection
Clause 8 Supplier’s Obligations
Clause 9 Customers Obligations
Clause 10 Fees and Payment
Clause 11 Proprietary Rights
Clause 12 Confidentiality
Clause 13 Indemnity
Clause 14 Limitation of Liability
Clause 15 Term and Termination
Clause 16 Force Majeure
Clause 17 Conflict
Clause 18 Variation
Clause 19 Waiver
Clause 20 Rights and Remedies
Clause 21 Severance
Clause 22 Entire Agreement
Clause 23 Assignment
Clause 24 No Partnership or Agency
Clause 25 Third Party Rights
Clause 26 Notices
Clause 27 Dispute Resolution
Clause 28 Governing Law
Clause 29 Jurisdiction
SCHEDULES
Schedule 1 Initial Term
Schedule 2 Fees
Schedule 3 Data Processing
Schedule 4 Configuration Services
Schedule 5 Maintenance
Schedule 6 Support Services
Schedule 7 Service Level Arrangements
AGREED TERMS
1. DEFINITI0NS & INTERPRETATION
1.1 The definitions and rules of interpretation in this clause apply in this Agreement.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to access the Platform and the Documentation, as further described in Clause 2.2.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in Clause 12.
Configuration Services: the development of the Marketplace more particularly described in Schedule 4;
Controller, processor, data subject, personal data, personal data breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
Customer Data: the data inputted by the Customer, Authorised Users, End Users or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services.
Data Protection Legislation: the UK Data Protection Legislation and any other European Union legislation relating to personal data and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of personal data including the General Data Protection Regulation ((EU) 2016/679); the Data Protection Act 2018; the Privacy and Electronic Communications Directive 2002/58/EC (as updated by Directive 2009/136/EC) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended. In case of any conflict between UK and EU Data Protection Legislation, the Data Protection Legislation in force in European Union shall prevail.
Documentation: the document made available to the Customer by the Supplier online or such other web address notified by the Supplier to the Customer from time to time which sets out a description of the Services and the user instructions for the Services.
Effective Date: the date of this Agreement.
End User: the individuals who view and engage with the Marketplace. For sake of clarity, such individuals could be either private individuals, or individuals acting on behalf of Customer’s own customers such as other companies or organisations.
Fees: the fees payable by the Customer to the Supplier for the Services, as set out in Schedule 1.
Initial Term: the initial term of this Agreement as set out in Schedule 2.
Marketplace: the freelancer marketplace platform where users buy and sell services to other users developed under this Agreement and processed through the TalentPools Platform.
Normal Business Hours: 9.00 am to 5.00 pm local UK time, each Business Day.
Renewal Term: any subsequent billing period after the Initial Term.
Services: the services provided by the Supplier to the Customer under this Agreement, including access to the Platform and the Marketplace, Configuration Services and Support and Maintenance Services.
Specification: the specification for the Marketplace set out in Schedule 4.
Support and Maintenance Services: the support and maintenance services in respect of the Marketplace more particularly described in the Appendix, and any enhanced support services paid for by the Customer.
Term: has the meaning given in Clause 14.1.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
TalentPools Platform: the platform and all associated software operated by the Supplier which powers the Marketplace and allows an Authorised User to view and edit Customer Data.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
1.5 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as amended from time to time.
1.7 A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this Agreement under that statute or statutory provision.
1.8 A reference to writing or written includes e-mail.
1.9 References to clauses and schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the relevant schedule to this Agreement.
2. LICENCE TO USE THE MARKETPLACE
2.1 Subject to the payment of the Fee, the Supplier grants to the Customer a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to access and use the Marketplace, and to permit End Users to user the Marketplace, powered by the TalentPools Platform and the Documentation during the Term solely for the Customer’s business operations.
2.2 In relation to the Authorised Users, the Customer undertakes that each Authorised User shall keep a secure password to access the Platform and Documentation and that each Authorised User shall keep its password confidential.
2.3 The Customer shall not and shall ensure that its Authorised Users shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties and except to the extent expressly permitted under this Agreement:
(i) attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the TalentPools Platform and/or Documentation (as applicable) in any form or media or by any means; or
(ii) attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the TalentPools Platform; or
(b) access all or any part of the Services and Documentation in order to build a product or service which competes with the Services and/or the Documentation; or
(c) use the Services and/or Documentation to provide services to third parties except the End Users; or
(d) subject to Clause 23, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Documentation available to any third party except the Authorised Users and End Users; or
(e) attempt to obtain, or assist third parties in obtaining, access to the Services and/or Documentation, other than as provided under this Clause 2; and
2.4 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Documentation and, in the event of any such unauthorised access or use, notify the Supplier without undue delay.
2.5 The rights provided under this Clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.6 If the Customer uses Stripe as it’s payment provider, the Customer warrants and represents that it, and its Marketplace shall not engage in any of the business activities listed at https://stripe.com/en-gb-gr/restricted-businesses.
3. CONFIGURATION SERVICES
3.1 The Supplier shall perform the Configuration Services strictly in accordance with the timetable set out in Schedule 4. The Supplier shall use all reasonable endeavours to meet the completion dates set out in Schedule 4. Such dates shall not be of the essence in this Agreement. The Supplier shall notify the Customer as soon as it becomes likely that the deadline may be missed.
3.2 Within five business days of the Supplier’s delivery to the Customer of all or any part of the Marketplace, the Customer shall review the Marketplace to confirm that it functions in material conformance with the applicable portion of the Specification. If the Marketplace fails in any material respect to conform with the applicable portion of the Specification, the Customer shall give the Supplier a detailed description of any such non-conformance (Error), in writing, within the five-day review period.
3.3 The Supplier shall use reasonable endeavours to correct any Error within a reasonable time and, on completion, submit the corrected part of the Marketplace to the Customer. The provisions of this Clause 3.3 shall then apply again, up to two additional times. Any work done after this point will be chargeable to the Customer at $74/hr.
3.4 If the Customer does not provide any written comments in the five-day period described above, or if the Marketplace is found to conform with the Specification, the Marketplace shall be deemed accepted.
4. GENERAL SERVICES
4.1 The Supplier shall provide the Support and Maintenance Services and make available the Documentation to the Customer on and subject to the terms of this Agreement.
4.2 The Supplier shall host the Marketplace in accordance with the terms of Schedule 7 as may be amended on written notice to the Customer.
4.3 In consideration of the support fees set out in Schedule 2 the Supplier shall provide the Customer with the Support and Maintenance Services during Normal Business Hours in accordance with the Supplier’s Support Services Policy in effect at the time that the Services are provided. The Supplier may amend the Support Services, with 3 months advance written notice, and where the Customer may choose to terminate the Agreement if they disagree with the amendments. The Customer may purchase enhanced support services, set out in Schedule 6, separately at the Supplier’s then current rates.
5. CUSTOMER DATA
5.1 The Customer shall provide all Customer Data as necessary for the Supplier to carry out the Configuration Services.
5.2 The Customer shall not access, store, distribute or transmit any Viruses within the Services.
5.3 The Customer warrants and represents that Customer Data shall not:
(a) be unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive under applicable laws;
(b) facilitate illegal activity;
(c) depict sexually explicit images;
(d) promote unlawful violence;
(e) be discriminatory based on race, gender, colour, religious belief, sexual orientation, disability;
(f) infringe any third party rights, including intellectual property rights, rights of privacy or rights in confidential information;
or
(g) be otherwise illegal or cause loss, damage or injury to any person or property including the Supplier.
5.4 If the Supplier reasonably believes that the Customer is in breach of any of the provisions of Clause 5.3, the Supplier shall notify the Customer, and if Customer fails to act without undue delay, the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to remove such content and/or suspend the Services until the content is removed.
5.5 The Supplier shall follow its archiving procedures for Customer Data as set out in its Back-Up Policy (available on request) as may be notified to the Customer from time to time, as such document may be amended by the Supplier in its sole discretion from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against the Supplier shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier in accordance with the archiving procedure described in its Back-Up Policy. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up for which it shall remain fully liable). This clause does not apply to personal data.
6. MARKETPLACE
6.1 The Customer is responsible for all the End User’s rights and obligations in relation to the Marketplace. The Customer shall provide to the Supplier or otherwise ensure that the Marketplace includes appropriate terms of use and privacy policy which comply with all applicable laws and regulations. The terms of use must include the following clauses:
This platform is powered by TalentPools, a trading name of Crowdskills Ltd.
If the customer chooses to use Stripe as their payments gateway, they should include the following in their Terms and Conditions:
Payment processing services for users on [your platform name] are provided by Stripe and are subject to the Stripe Connected Account Agreement (https://stripe.com/connect-account/legal), which includes the Stripe Terms of Service (https://stripe.com/legal) (collectively, the “Stripe Services Agreement”). By agreeing to this agreement or continuing to operate as a user on [your platform name], you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of [your platform name] enabling payment processing services through Stripe, you agree to provide [your platform name] accurate and complete information about you and your business, and you authorize [your platform name] to share it and transaction information related to your use of the payment processing services provided by Stripe.
7. DATA PROTECTION
7.1 Both parties will comply with all applicable requirements of the Data Protection Legislation. This Clause 7 is in addition to, and does not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
7.2 The parties acknowledge that:
(a) if the Supplier processes any personal data on the Customer’s behalf when performing its obligations under this Agreement, the Customer is the controller and the Supplier is the processor for the purposes of the Data Protection Legislation.
(b) Schedule 3 (Data Protection Agreement) sets out the scope, nature and purpose of processing by the Supplier, the duration of the processing and the types of personal data and categories of data subject.
8. SUPPLIER’S OBLIGATIONS
8.1 The Supplier undertakes that the Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
8.2 The undertaking at Clause 8.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s written instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in Clause 8.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Documentation and/or the information obtained by the Customer through the Services will meet the Customer’s requirements; and
(b) is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
8.3 From time to time, Supplier may add new ‘Optional Features’ on top of it’s core system, that Customers may choose to enable if they wish. These optional features are always created with a specific use case in mind, where their correct functioning may be dependent on certain combinations of various features/settings, or on external accounts. If enabled, they may in some cases break the previous functionality of the Customer’s platform. These Optional Features are offered as a free supplement, and are not included within the contractual obligations of clause 8.1 above. They are offered on an ‘as-is’ basis, and their correct functioning is not guaranteed. If a Customer wishes to test that an Optional Feature will work with their current combination of features, they may purchases a ‘Test’ account. If an Optional Feature is currently incompatible with a Customer’s current configuration, but the Customer wishes to enable that feature, they may request this compatibility to be developed as a paid customisation.
8.4 To test the functionality of their Marketplace, for example testing whether an optional feature will function correctly with a Customer’s existing combination of enabled features, the Customer may choose to purchase a ‘Test’ account as a separately billable service. The pricing of this ‘Test’ account shall be made available as part of the standard pricing list. The Customer may only use the ‘Test’ account for testing purposes and may not allow real users to be registered, or otherwise use this account for normal business usage. If the Customer does use the ‘Test’ account in this way, the Supplier may immediately delete this ‘Test’ account. This account will be a completely separate account, with no connection at all between the Customer’s ‘Test’ account and the main account.
9. CUSTOMER’S OBLIGATIONS
The Customer shall:
(a) provide the Supplier with:
(i) all necessary co-operation in relation to this Agreement; and
(ii) all necessary access to such technical or commercial information as may be required by the Supplier; to the extent necessary to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this Agreement, comply with all applicable mandatory laws and regulations with respect to its activities under this Agreement;
(c) carry out all other Customer responsibilities set out in this Agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) ensure that the Authorised Users use the Services and the Documentation in accordance with the terms and conditions of this Agreement and shall be responsible for any Authorised User’s breach of this Agreement;
(f) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time;
(g) be, to the extent permitted by law and except as otherwise expressly provided in this Agreement, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to the Supplier’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet;
10. FEES AND PAYMENT
10.1 The Customer shall pay the Fees in accordance with this Clause and Schedules 2, 4 and 6.
10.2 The Customer shall subscribe to a Billing Plan via the TalentPools website, managed by payments provider FastSpring which will process all payments. When the Customer subscribes to a Plan, they hereby authorise the Supplier to bill that payment method automatically on the Billing date, according to the Billing Plan they chose. For example, payments on a Monthly Billing Plan shall be charged automatically every month from the date the Plan began. If the Customer wishes to pay by Wire Transfer or another payment method that does not charge automatically, they must pay for the following Billing Cycle before the start date of that cycle. For example, if the Customer chooses an Annual Plan beginning January 1st and they pay via Wire Transfer, they must pay for the next year’s plan before Jan 2nd of the following year. The Supplier may provide reminder notifications, however the Customer is solely responsible for organizing for these payments to be made on time. The Customer shall also pay in advance for any billable customization work, via an invoice generated through and processed by FastSpring.
10.3 If the Supplier has not received payment of any sum by the due date, and without prejudice to any other rights and remedies of the Supplier:
(a) the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
(b) interest shall accrue on a daily basis on such due amounts at an annual rate equal to 3% over the then current base lending rate of the Supplier’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
10.4 All Fees:
(a) shall be payable in the currency set by the billing subscription;
(b) are, subject to Clause 13.3(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added to the Supplier’s invoice(s) and billing checkout page at the appropriate rate.
(d) are exclusive of currency conversion fees, which are added to the total price charged at the billing checkout page. Paying in USD incurs no conversion The following currencies incur a 3.5% fee: AUD, CAD, DKK, EUR, GBP, HKD, JPY, SEK, SGD, ZAR. All other currencies incur a 5.5% fee.
10.5 The Supplier shall be entitled to increase all Fees at the start of each Renewal Period upon 90 days’ prior notice to the Customer and Schedule 2 shall be deemed to have been amended accordingly.
11. PROPRIETARY RIGHTS
11.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services and the Documentation, including the TalentPools Platform and any software developed at the request of the Customer within any purchased Configuration, Support and Maintenance Services. Except as expressly stated herein, this Agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Services or the Documentation.
11.2 The Supplier confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this Agreement.
12. CONFIDENTIALITY
12.1 Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement. A party’s Confidential Information shall not be deemed to include information that:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or
(d) is independently developed by the receiving party, which independent development can be shown by written evidence.
12.2 Subject to Clause 12.4, each party shall hold the other’s Confidential Information in confidence and not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this Agreement.
12.3 Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.
12.4 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 possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 12.4, it takes into account the reasonable requests of the other party in relation to the content of such disclosure.
12.5 Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
12.6 The Customer acknowledges that details of the Services, and the results of any performance tests of the Services, constitute the Supplier’s Confidential Information.
12.7 The Supplier acknowledges that the Customer Data is the Confidential Information of the Customer.
12.8 No party shall make, or permit any person to make, any external communications concerning the existence or details of this Agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction. The above notwithstanding, the Customer agrees that the Supplier may use the Customer’s name and logo for promotional activities.
12.9 The above provisions of this Clause 12 shall survive termination of this Agreement, however arising.
13. INDEMNITY
13.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer Data or any claim from an End User, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
13.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services or Documentation infringes any patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
13.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
13.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services or Documentation by anyone other than the Supplier; or
(b) the Customer’s use of the Services or Documentation in a manner contrary to the written instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services or Documentation after notice of the alleged or actual infringement from the Supplier or any appropriate authority.
13.5 The foregoing and Clause 14.3(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
14. LIMITATION OF LIABILITY
14.1 Except as expressly and specifically provided in this Agreement:
(a) the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use.
(b) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement; and
(c) the Services and the Documentation are provided to the Customer on an “as is” basis, as at the date of this Agreement.
14.2 Neither Party shall under any circumstances be liable for any indirect or consequential damages, including but not limited to loss of profits, sales or business opportunities, of the other Party arising under or in connection with this Agreement. This limitation of liability shall not apply to breaches of confidentiality obligation, indemnification obligation and/or cases of intentional misconduct or gross negligence. Nothing in this Agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
14.3 Subject to Clause 14.1 and Clause 14.2:
(a) the Supplier shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this Agreement; and
(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at Clause 13.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall be limited to the total Subscription Fees paid during the 12 months immediately preceding the date on which the claim arose.
15. TERM AND TERMINATION
15.1 This Agreement shall commence on the Effective Date and shall continue in force unless terminated in accordance with its terms.
15.2 Without affecting any other right or remedy available to it, either party may terminate this Agreement on three months’ written notice to the other party.
15.3 Without affecting any other right or remedy available to it, either party may terminate this Agreement with immediate effect by giving written notice to the other party if:
(a) the other party fails to pay any amount due under this Agreement on the due date for payment and remains in default not less than 14 days after being notified in writing to make such payment;
(b) the other party commits a material breach of any other term of this Agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
(c) the other party repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement;
(d) 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 is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the Insolvency Act 1986;
(e) 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(f) 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 other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
(g) an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
(h) the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
(i) a 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;
(j) 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 the other party’s assets and such attachment or process is not discharged within 14 days;
(k) 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 15.3 (d) to Clause 15.3 (j) (inclusive);
(l) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(m) there is a Change of Control of the other party.
15.5 On termination of this Agreement for any reason:
(a) all licences granted under this Agreement shall immediately terminate and the Customer shall immediately cease all use of the Services and/or the Documentation;
(b) each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
(c) the Supplier shall use reasonable commercial endeavours to deliver the latest back-up data to the Customer, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by the Supplier in returning or disposing of Customer Data; and
(d) any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
15.6 On termination of this Agreement, provided the Customer has not breached any term of this Agreement, the Customer can purchase a license to use the Marketplace for up to 18 months and the relevant terms of this Agreement shall continue to apply. The Marketplace will be hosted and maintained by the Supplier, without access to the Shared User feature. Support will only be provided to resolve issues which prevent the End Users from using the platform in the same way as prior to termination of the Agreement. The non-refundable monthly cost for this service is the standard monthly license fee, payable in advance, plus the development cost of setting up the marketplace in it’s own hosted environment. After this licence has terminated, the provisions of Clause 15.3(c) shall apply.
15.7 If the Supplier suffers an event described in Clauses 15.3 (d to l), it will make all efforts to provide the Customer with the option to purchase a perpetual licence (without the right to assign or sub-license) to use a self-hosted version of the Marketplace on a Customer-owned AWS account.
16. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, 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 or telecommunications 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 sub-contractors (where this default was beyond the reasonable control or expectation of the Supplier, and where the effects could not reasonably have been avoided), provided that the Customer is notified of such an event and its expected duration.
17. CONFLICT
If there is an inconsistency between any of the provisions in the main body of this Agreement and the Schedules, the provisions in the main body of this Agreement shall prevail.
18. VARIATION
No variation of this Agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
19. WAIVER
No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
20. RIGHTS AND REMEDIES
Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
21. SEVERANCE
21.1 If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement.
21.2 If any provision or part-provision of this Agreement is deemed deleted under Clause 21.1 the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
22. ENTIRE AGREEMENT
22.1 This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
22.2 Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement.
212.3 Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
22.4 Nothing in this clause shall limit or exclude any liability for fraud.
23. ASSIGNMENT
23.1 The Customer shall not, without the prior written consent of the Supplier (such consent not to be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement
23.2 The Supplier shall not, without the prior written consent of the Customer (such consent not to be unreasonably withheld or delayed), assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this Agreement, except that on written notice to the Customer, the Supplier shall be entitled to transfer or assign this Agreement to any holding or subsidiary company, or any other subsidiary company of the Supplier’s holding company.
24. NO PARTNERSHIP OR AGENCY
Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
25. THIRD PARTY RIGHTS
This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
26. NOTICES
26.1 Any notice required to be given under this Agreement shall be in writing and shall be delivered by hand, email or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes.
26.2 A notice delivered by hand or email shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
27. DISPUTE RESOLUTION
27.1 If a dispute arises between the parties under this Agreement, the parties shall communicate in a good faith effort to resolve the dispute.
27.2 If no resolution to the dispute so referred has been agreed within 30 days, the parties will attempt to settle it by mediation in accordance with the CEDR Dispute Resolution Model Mediation Procedure. To initiate the mediation a party must give notice in writing to the other party to the dispute requesting mediation. Unless agreed between the parties, the mediator will be nominated by CEDR. The mediation will start no later than 5 Business Days after the date of the notice. The commencement of mediation will not prevent the parties commencing or continuing court proceedings.
28. GOVERNING LAW
This Agreement 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 the law of England and Wales.
29. JURISDICTION
Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
This Agreement has been entered into on the date stated at the beginning of it.
SCHEDULE 1: INITIAL TERM
The Initial Term is determined by the current billing subscription.
SCHEDULE 2: FEES
1. CONFIGURATION SERVICES FEES
1.1. Configurations services include:
Setup fee: £0
Additional Services: $75/hour
1.2 In the event that the Supplier reasonably expects that the actual cost will exceed the amounts specified in Paragraph 1.1, any work to be completed in additional developer-months shall first be approved in writing by both the Supplier and the Customer, shall be charged at the rates set out in Paragraph 3 and shall result in an extension of the acceptance date for the implementation of such phase of the Configuration Services on a day-for-day basis.
2. SUBSCRIPTION FEES
The Subscription Fee includes a set Monthly Fee and a Transaction Fee.
The set Monthly fee is determined by the Customer at the checkout stage. All subscriptions fees are payable in advance and are non-refundable, irrespective of Termination. The fee is due either monthly, quarterly or annually based on the billing choice.
For marketplaces that have at least $10,000 of monthly contract value, there is also a Transactional Fee of 1%. This fee is only charged if the total value of all milestones that have been approved during a single calendar month is over $10,000. The fee is calculated by dividing that total milestone value by 100. For example, if the users on the Customer’s marketplace approve $20,000 of milestones during January, a Transaction Fee of $200 will be due. This fee will be charged monthly in arrears.
3. SUPPORT FEES
The Supplier’s Support Service Fee is included in the Subscription Fee. Any Enhanced Support Services are charged at $75/hour, invoiced at the end of the month. All customisations are payable in advance.
SCHEDULE 3: DATA PROCESSING
The parties to this contract will abide by the TalentPools Data Processing Agreement (https://TalentPools.co/dpa).
SCHEDULE 4: CONFIGURATION SERVICES
1. ELEMENTS
The Supplier shall provide an initial service, and additional customisations shall be discussed and billed at a later date. The initial service includes:
- Providing the TalentPools Marketplace – a duplication of the marketplace application as demonstrated at demo.whitelance.co.
- Changing the font, colours and logo to the Customer’s branding.
- Offering to provide and host a duplicate of site.whitelance.co as a WordPress marketing website and updating any content as required. Please note, any new designs require further time and cost as detailed in the Configuration Services listed in Schedule 2.1.
- Connecting the Marketplace to the Customer’s domain name.
Additional requirements must be specified in writing and are chargeable.
2. DELIVERY
The estimated delivery date for the Configuration Service is 1 calendar month after the initial payment has been made. Training via a video conferencing tool on use of the TalentPools Platform will be provided to the Customer.
3. CUSTOMER’S DUTIES
The Customer shall provide final documentation on the following:
3.2 The marketing content (text and images) requested
3.3 Branding media, including high resolution logo in PSD or EPS format
3.4 The Customer must make DNS changes as requested by the Supplier for their custom domain to take effect.
SCHEDULE 5: MAINTENANCE
1. MAINTENANCE
1.1 The Supplier shall maintain and update the TalentPools Platform. This may include scheduled corrections, and software updates, as determined by the Supplier. During maintenance periods, the Supplier may, at its discretion, upgrade versions, install error corrections and apply patches to the hosted systems. The Supplier shall use all reasonable endeavours to avoid unscheduled downtime for TalentPools Platform maintenance.
1.2 Should the Customer believe that the TalentPools Platform has not been maintained, they may at any time file a reports by contacting TalentPools support.
SCHEDULE 6: SUPPORT SERVICES
1. TECHNICAL SUPPORT SERVICES
1.1 The Supplier shall provide the Customer with technical support services. The Customer shall appoint ONE person to act as liaison and be authorised to contact the Supplier for technical support services. The Supplier shall provide technical support services only to that person.
1.2 To request support, the appointed Customer liaison shall submit a written ticket to TalentPools, within a formal ticking system if so required by TalentPools. The Supplier will be available to take phone calls during regular UK business hours, but a written support ticket must be provided before it is actioned. The Supplier shall use reasonable endeavours to process support requests, determine the source of the problem and respond to the Customer. The Supplier support centre shall endeavor to respond to all support requests within one working day.
2. SUPPORT SERVICES POLICY
The Supplier shall provide support free of charge, for the following support requests:
2.1 Errors that prevent End Users from using the Marketplace in the same way as when either:
(a) the Configuration services were signed-off, or
(b) a subsequent major platform upgrade is released
2.2 Guidance on how to use the platform
2.3. Support on how to use the Customer’s ‘Test Account’.
However, the provision of the ‘Test Account’ itself is a separate service, billable independently. To test the functionality of their Marketplace, for example testing whether an optional feature will function correctly with a Customer’s existing combination of enabled features, the Customer may choose to purchase a ‘Test’ account as a separately billable service. The pricing of this ‘Test’ account shall be made available as part of the standard pricing list. The Customer may only use the ‘Test’ account for testing purposes and may not allow real users to be registered, or otherwise use this account for normal business usage. If the Customer does use the ‘Test’ account in this way, the Supplier may immediately delete this ‘Test’ account. This account will be a completely separate account, with no connection at all between the Customer’s ‘Test’ account and the main account. The Customer shall provide Support free of charge, in fixing errors within this Test Account.
Free support is not offered for the following, which instead fall within the Enhanced Services category:
2.4 From time to time, the Supplier may add new ‘Optional Features’ on top of it’s core system, that Customers may choose to enable if they wish. These optional features are always created with a specific use case in mind, where their correct functioning may be dependent on certain combinations of various features/settings, or on external accounts. If enabled, they may in some cases break the previous functionality of the Customer’s platform. These Optional Features are offered as a free supplement to the main contractual Service. They are offered on an ‘as-is’ basis, and their correct functioning is not guaranteed. If a Customer wishes to test that an Optional Feature will work with their current combination of features, they may purchases a ‘Test’ account. If an Optional Feature is currently incompatible with a Customer’s current configuration, but the Customer wishes to enable that feature, they may request this compatibility to be developed as a paid customization under the ‘Enhanced Services’ clause below.
3. ENHANCED SERVICES POLICY
The Supplier shall also use reasonable endeavours to process any support requests not listed above, subject to a fee of $75/hour. These include, but are not limited to:
3.1 New features
3.2 Customisation of existing features
3.3 New integrations with external services
3.4 Any work on the Configuration services after the initial work has been approved
3.5 Processing end user requests
3.6 Account access requests
3.7 Communications relating to Stripe (or other payment gateways), including KYC, failed or any other transactions or user issues
3.8 Implementing translations for new features, content or messages
3.9 Any support request not relating to critical errors preventing End Users from using the Marketplace
SCHEDULE 7: SERVICE LEVEL ARRANGEMENTS
SERVICE AVAILABILITY
The Supplier shall aim to provide at least a 99% uptime service availability level (Uptime Service Level). This availability refers to an access point on the Supplier hosting provider’s backbone network. It does not apply to the portion of the circuit that does not transit the hosting provider’s backbone network, as the Customer is responsible for its own internet access. Availability does not include maintenance period as described in Schedule 5, customer-caused or third party-caused outages or disruptions (except to the extent that such outages or disruptions are caused by those duly authorised third parties sub-contracted by the Supplier to perform the Services), or outages or disruptions attributable in whole or in part to force majeure events within the meaning of Clause 16.