BIZIMPLY TERMS OF BUSINESS

Effective 1st September 2020

BACKGROUND

(a)    We own a workforce and operational management application, and make it available to subscribers via our platform on a subscription basis.

(b)     You want to use the Service in the operation of your business.

(c)     Therefore you have agreed to contract for the Service from us on the terms and conditions set out in this Agreement.

1. INTERPRETATION

1.1    The definitions and rules of interpretation in this clause apply in this Agreement.

“Authorised User”     an employee or contractor of yours authorised to access and use the Service by you;

“Business Day”     a day other than a Saturday, Sunday or public holiday in Ireland when banks in Dublin are open for business;

“DPL”     the General Data Protection Regulation ((EU) 2016/679) (“GDPR”), the Data Protection Act 2018, and any regulations and secondary legislation, as amended or updated from time to time; and the terms “Controller”, “Processor”, “Data Subject”, “Personal Data” and “processing” when used in this Agreement will have the meanings set out in the DPL;

“Confidential Information”     all documentation, technical information, software, business information, feedback, pricing of the Service, reports issued from the Service, trade secrets or know how or other materials of a confidential nature disclosed by one Party to the other Party and in connection with this Agreement;

“Documentation”     the document made available to you by us online via www.bizimply.com/terms or such other web address notified by us to you from time to time which sets out a description of the Service and the user instructions for the Service;

“Effective Date”     the date of this Agreement as set out on the Order Form;

“Excess Storage Fees”     the fees we charge if you exceed normal server storage requirements;

“Intellectual Property Rights”     Any and all intellectual property rights of any nature, whether registered, registerable or otherwise, including patents, utility models, trademarks, registered designs and domain names, applications for any of the foregoing, trade or business names, goodwill, copyright and rights in the nature of copyright, design rights, rights in databases, moral rights, know-how and any other intellectual property rights that subsist in computer software, computer programs, websites, documents, information, techniques, business methods, drawings, logos, instruction manuals, lists and procedures and particulars of customers, marketing methods and procedures and advertising literature, including the “look and feel” of any websites, and in each case all rights and forms of protection of a similar nature or having equivalent or similar effect to any of these that may subsist anywhere in the world, in each case for their full term, together with any future rights and renewals or extensions;

“Normal Business Hours”     9.00 am to 5.00 pm GMT, each Business Day;

“Order Form”     the order form to be signed by you to receive the Service;

“Party”     a party to this Agreement;

“Plan”     the plan set out in the order form containing information upon which the Subscription Fees are based including number of employees, locations, modules and the like;

“Platform”    our proprietary platform from which we make the Service available;

“Service”    the workforce and operational management service provided by us as more particularly described at www.bizimply.com;

“Subscription Fees”     the subscription fees payable by you to us for the Service, as set out in the order form;

“Support Service Policy” Customer support available with your plan in relation to our platform, as outlined in clause 2.3;

“Term”     the Initial Term described in the Order Form and any extension(s) thereof in accordance with clause 13.1;

“Virus”     anything 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;

“We”     we, us and our means Bizimply Limited;

“You”     the Customer detailed on the Order Form; and

“Your Data”     the data inputted by or on behalf of you.

1.2     Clause, Order Forms and paragraph headings will not affect the interpretation of this Agreement

1.3     Unless the context otherwise requires, words in the singular will include the plural and in the plural will include the singular.

1.4     A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.

1.5     A reference to a statute or statutory provision will include all subordinate legislation made from time to time under that statute or statutory provision.

1.6     Any phrase introduced by the words including, includes, in particular or for example, or any similar phrase, will be construed as illustrative and will not limit the generality of the related general words.

1.7     References to clauses and Order Forms are to the clauses and Order form of this Agreement. References to paragraphs are to paragraphs of the relevant order form.

1.8     A person includes a natural person, corporate or unincorporated body (whether or not having separate legal personality).

1.9     If there is an inconsistency between any of the provisions in the main body of this Agreement and the Order Form, the provisions in the main body of this Agreement will prevail

2. SERVICE

2.1     We will, during the Term, provide the Service and make available the Documentation to you on and subject to the terms of this Agreement.

2.2     We will use commercially reasonable endeavours to make the Service available 24 hours a day, seven days a week. However from time to time it will be necessary to carry out maintenance which we will schedule and (unless in an emergency) let you know in advance.

2.3     We will, as part of the Service provide you with our standard customer support services during Normal Business Hours. We may amend the Support Service Policy in our sole and absolute discretion from time to time.

2.4     We reserve the right to introduce new or enhanced features and functionalities to the Platform.

2.5     If you are experiencing technical issues with our product, we will provide remote support, whereby we have full access to your dashboard for the purpose of troubleshooting and correcting any fault.

3. LICENCE

3.1    Subject to you paying the Subscriptions Fees in accordance with clause 7.1, and the other terms and conditions of this Agreement, we hereby grant to you a non-exclusive, non-transferable right, without the right to grant sub-licences, to use and permit the Authorised Users to use the Service and the Documentation during the Term solely for your internal business operations.

3.2     In relation to the Authorised Users, you undertake that each Authorised User will keep a secure password for his/her use of the Service and Documentation, that such password will be changed regularly and that each Authorised User will keep his/her password confidential.

3.3     For so long as you are using the Service you grant us the right to use your company name and logo in our marketing and promotional materials.

4. INTELLECTUAL PROPERTY RIGHTS

4.1    You will own all Intellectual Property Rights in and to all Your Data and will have sole responsibility for the legality, reliability, integrity, accuracy and quality thereof.

4.2     You acknowledge and agree that we and/or our licensors own all Intellectual property Rights in the Service, Platform and Documentation. Except as expressly stated herein, this Agreement does not grant you any rights to, under or in, any Intellectual Property Rights, or any other rights or licences in respect of the Service, Platform or the Documentation.

4.3     To the extent that any modifications or improvements to the Service, Platform or Documentation are carried out under or in connection with this Agreement, whether by us alone or jointly with you, all Intellectual Property Rights to such underlying ideas, and in any resulting improvement or modifications, will be assigned to and will vest with and be solely owned by us.

5. YOUR OBLIGATIONS

5.1    You will

(a) comply with all applicable laws and regulations with respect to your activities under this Agreement including the DPL;

(b) ensure that the Service is used in accordance with the terms and conditions of this Agreement, and hold us harmless for your acts or omissions as well as those of your contractors and agents;

(c) be solely responsible for any problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to your network connections or telecommunications links or caused by traversing the internet; and

(d) obtain and maintain all necessary licences, consents, and permissions necessary for you and your contractors and agents, to perform your obligations under this Agreement.

5.2    You will not access, store, distribute or transmit any Viruses, or any material during the course of your use of the Service that:

(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;

(b) facilitates illegal activity;

(c) depicts sexually explicit images;

(d) promotes unlawful violence;

(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or

(f) is otherwise illegal or causes damage or injury to any person or property;

and we reserve the right, without liability or prejudice to our other rights to you, to disable your access to any material that breaches the provisions of this clause.

5.3     You will not (and will not knowingly permit any third party):

(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 attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Platform and/or Documentation (as applicable) in any form or media or by any means; attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform;

(b) access all or any part of the Service and Documentation in order to build a product or service which competes with the Service and/or the Documentation;

(c) use the Service and/or Documentation to provide services to third parties; license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Service and/or Documentation available to any third party except as contemplated by this Agreement; or

(d) attempt to obtain, or assist third parties in obtaining, access to the Service and/or Documentation, other than as provided for in this Agreement.

5.4     You will use all reasonable endeavours to prevent any unauthorised access to, or use of, the Service and/or the Documentation and, in the event of becoming aware of any such unauthorised access or use, promptly notify us.

6. YOUR DATA

6.1    To the extent we are a Processor under the DPL, we will process any of your Personal Data in accordance with Clause 7.

6.2     We will follow our archiving procedures for Your Data in accordance with our back-up policy as such may be amended by us in our sole discretion from time to time. We currently back up our master production database every 6 hours and back-ups are retained for 28 days.

6.3     In the event of any loss or damage to Your Data, your sole and exclusive remedy will be for us to use reasonable commercial endeavours to restore the lost or damaged Your Data from the latest back-up of such Your Data maintained by us in accordance with the archiving procedure described in our back-up policy.

6.4     We will not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party (except those third parties sub-contracted by us to perform services related to Your Data maintenance and back-up).

7. DATA PROTECTION

7.1    Both parties will comply with all applicable requirements of the DPL.

7.2    The Parties acknowledge that for the purposes of the DPL, we are Processor and you are the Controller. The Annex sets out the details of the processing carried out by Processor, and the duration of the processing.

7.3    Without prejudice to the generality of section 7.1, Processor will, in relation to any Personal Data processed in connection with the performance by Processor of its obligations under the Agreement:

(i) process that Personal Data for the purposes of providing its services, only in accordance with the written instructions of Controller;

  • (ii) if Processor is required by the laws of any member state of the European Union or by the laws of the European Union applicable to Processor (“Applicable Laws”)  to process such Personal Data for other purposes, promptly notify Controller of such other purposes before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Processor from so notifying Controller;

(iii) subject to section 7.3(ii), not disclose any Personal Data to any third party without the prior written consent of Controller;

(iv) 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 the 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);

(v) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and

(vi) not transfer any Personal Data outside of the European Economic Area unless the prior written consent of Controller has been obtained and the following conditions are fulfilled:

  • (a) process that Personal Data for the purposes of providing its services, only in accordance with the written instructions of Controller;
  • (b) the Data Subject has enforceable rights and effective legal remedies;
  • (c) Processor complies with its obligations under the DPL by providing an adequate level of protection to any Personal Data that is transferred; and
  • (d) Processor complies with reasonable instructions notified to it in advance by Controller with respect to the processing of the Personal Data;

(vii) Assist Controller, at Controller’s cost, in responding to any request from a Data Subject and in ensuring Controller’s compliance with its obligations under the DPL with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;

(viii) notify Controller without undue delay on becoming aware of a Personal Data breach;

(ix) at the written direction of Controller, delete or return Personal Data and copies thereof to Controller on termination of the Agreement unless required by Applicable Laws to store the Personal Data; and

(x) maintain complete and accurate records and information to demonstrate its compliance with clause 7 (including but not limited to contractual arrangements for the transfer of Personal Data outside the EEA) and allow for audits by Controller or Controller’s designated auditor, at Controller’s expense; and

(xi) comply with all reasonable requests of Controller, resulting from any such audit described in section 7.3(x).

8. APPROPRIATE SAFEGUARDS

8.1    Processor will not appoint any new third party sub-processor of Personal Data under the Agreement, without Controller’s prior written consent. [Processor currently uses sub-processors for Cloud Service Providers, Cloud-Based Support Services, Cloud Based Email notification Services.

8.2    Where Controller provides consent pursuant to section 8.1 Processor will enter into an agreement with such third-party processor incorporating terms which are substantially similar to those set out in section 7.3.

8.3     As between Controller and Processor, Processor shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to clause 7 & 8.

9. SUBSCRIPTION FEES AND PAYMENT

9.1     Subscription Fees are based on the Plan selected by you and the number of active employees as of the Effective Date. If you wish to increase your Employee Bracket, or upgrade to a new Plan, you must inform us by email and we will amend your future invoices accordingly. Increases to the Employee Bracket, will in any event incur additional Subscription Fees from the date of such increase.

9.2     Notwithstanding any decrease in your Employee Bracket, or non-use of any modules during the Term, you will continue to be charged during the remainder of the Term at the highest rate of Subscription Fees, which you qualified for, during the Term.

9.3     We will invoice and you will pay Subscription Fees in accordance with your Order Form during the Term.

9.4   All amounts and fees stated or referred to in this Agreement are:

(a) payable in the currency set out in the Order Form;

(b) non-cancellable or refundable; and

(c) exclusive of value added or other sales taxes, which will be added to our invoices at the appropriate rate required by law.

9.5     We do not warrant that your use of the Service will be uninterrupted or error-free.

9.6     If we have not received payment within 15 days after the due date, and without prejudice to any other rights and remedies of ours, we will be entitled to disable your passwords and access to all or part of the Service and we will be under no obligation to provide any or all of the Service while the invoice(s) concerned remain unpaid; and/or

9.7     If you add additional documentation or material to the Platform, which results in a requirement for excess storage, we will charge you our Excess Storage Fees, the current version of which are set out in the Order Form, and payment thereof must be made in accordance with this clause 9.

9.8     We will be entitled to increase the Subscription Fee and Excess Storage Fee rates at any time by giving you 30 days’ notice in advance by email. If you do not agree to the increase you may terminate this Agreement prior to such increase coming into effect.

10. CONFIDENTIALITY

10.1    Each Party (“Receiving Party”) acknowledges that in the course of performing its duties under this Agreement, it may obtain Confidential Information from the other Party (“Disclosing Party”).

10.2    During the Term and thereafter, the Receiving Party will treat all Confidential Information as secret, confidential, and proprietary, and will not disclose or use the same without the prior written consent of the Disclosing Party, other than to the Receiving Party’s employees and contractors on a need to know basis for the purpose of performing its obligations under this Agreement, or as required by law. The Receiving Party will implement such procedures as it considers reasonably necessary to prevent the intentional or negligent disclosure to any third party of any Confidential Information. Notwithstanding the foregoing, nothing in this Agreement will prevent the disclosure by the Receiving Party or its employees of information that:

(a) prior to its disclosure to the Receiving Party, was of general public knowledge;

(b) becomes, subsequent to its disclosure to the Receiving Party, a matter of general public knowledge other than as a consequence of a breach by the Receiving Party of any obligation under this Agreement;

(c) is made public by the Disclosing Party; or

(c) is received in good faith from a third party having the right to disclose it, who, to the Receiving Party’s knowledge, did not obtain such information from the Disclosing Party and who imposes no obligation of secrecy on the Receiving Party with respect to such information.

10.3     No announcements or press releases concerning the subject matter of this Agreement will be made by either Party without the prior written

10.4     Both Parties will comply with all applicable requirements of the DPL and your use of the Service is subject to the Privacy Policy.

11. WARRANTIES AND DISCLAIMERS

11.1    You warrant that any of Your Data inputted to the Platform is:

(a) owned by you or are provided with the express consent from the third party holding any Intellectual Property Rights over such material, or, alternatively, are in the public domain, and are not owned by any third party or otherwise covered by Intellectual Property Rights; and

(b) do not breach the rights of any person or entity, including rights of publicity, privacy, or under applicable DPL and are not defamatory.

11.2    You are solely responsible for determining the suitability of the Service for your use. You assume sole responsibility for results obtained from the use of the Service and the Documentation by you, and for conclusions drawn from such use. We will have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to us by you in connection with the Service, or any actions taken by us at your direction.

11.3     The Service and Documentation are provided by us “As Is”.

11.4     We do not warrant that your use of the Service will be uninterrupted or error-free.

11.5     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.

12. LIMITATION OF LIABILITY

12.1    Nothing contained in this clause 12 will limit:

(a) either Party’s liability for death or personal injury resulting from that Party’s negligence;

(b) either Party’s liability for fraud.

12.2    Subject to clause 12.1, we will not be liable in contract, tort (including negligence) or for breach of statutory duty or in any other way for:

(a) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings);

(b) any loss of goodwill or reputation; or

(c) any special or indirect or consequential losses in any case, whether or not such losses were within the contemplation of the Parties at the date of this Agreement, or were suffered or incurred by you arising out of or in connection with this Agreement.

12.3     Subject to clause 12.1, our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation (whether innocent or negligent), restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement will be limited in any 12 month period (the first of which will commence on the Effective Date and subsequently on each anniversary thereof) to the Subscription Fees paid to us during such 12 month period.

13. TERM AND TERMINATION

13.1    This Agreement will take effect on the Effective Date and continue for the Initial Term, and thereafter automatically be renewed for successive equivalent periods, unless terminated earlier in accordance with its provisions.

13.2     We may immediately terminate this Agreement, at any time in the event that:

(a) you commit a material breach of this Agreement which is not capable of remedy;

(b) you commit a material breach of this Agreement and (if such breach is capable of remedy) fail to remedy that breach within a period of 30 days after being notified in writing to do so;

(c) you cease to do business, become unable to pay your debts as they fall due within the meaning of Section 570 of the Companies Act 2014 , become or are deemed insolvent, have a receiver, manager, examiner, or similar officer appointed in respect of the whole or any part of your assets or business, make any composition or arrangement with your creditors, take or suffer any similar action in consequence of debt, or an order or resolution is made for your dissolution or liquidation (other than for the purpose of solvent amalgamation or reconstruction to which the non-terminating party has previously agreed in writing), enter into liquidation (whether compulsory or voluntary), or suffer or undergo any analogous process to the above in any jurisdiction.

13.3    You may terminate this Agreement at any time by emailing us at accounts@bizimply.com and instructing us to cancel your subscription. No refunds are payable upon such a cancellation, and all outstanding Subscription Fees for the remainder of the Term will immediately become due and payable.

13.4    We may terminate this Agreement on any anniversary of the Effective Date by giving you 30 days’ notice by email in advance.

13.5    Termination of this Agreement will not affect any of the Parties’ rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination.

13.6    The following clauses will survive any termination of this Agreement: 1, 4, 10, 12, 13.6, 15, 17 and 18.

14. FORCE MAJEURE

14.1    Neither Party (“Delayed Party”) will have any liability to the other Party (“Affected Party”) under this Agreement if it is prevented from, or delayed in, performing its obligations (excluding any obligation to make a payment) under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including strikes, lock-outs or other industrial disputes (excluding any industrial disputes involving its own workforce), act of God, war, riot, terrorism civil commotion, compliance with any law or regulation, fire, flood or storm (each a Force Majeure Event), provided that:

(a) the Affected Party is notified of such an event and its expected duration; and

(b) the Delayed Party uses all reasonable endeavours to mitigate, overcome or minimise the effects of the Force Majeure Event concerned,

and that if the period of delay or non-performance continues for 30 days or more, the Affected Party may terminate this Agreement by giving 10 Business Days’ written notice to the Delayed Party.

15. NOTICES

15.1    Normal communications between the Parties in respect of commercial matters will be conducted by email.

15.2     This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution. For the purposes of this clause 15.2, “writing” will not include e-mail.

8.2    Where Controller provides consent pursuant to section 8.1 Processor will enter into an agreement with such third-party processor incorporating terms which are substantially similar to those set out in section 7.3.

8.3     As between Controller and Processor, Processor shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to clause 7 & 8.

16. GENERAL

16.1    Nothing in this Agreement will be construed to give any Party the power to direct or control the daily activities of another Party, or to constitute the Parties as principal and agent, employer and employee, franchiser and franchisee, partners, joint venturers, co-owners or otherwise as participants in a joint undertaking.

16.2     The remedies of the Parties under this Agreement are cumulative and will not exclude any other remedies to which the Party may be lawfully entitled.

16.3     Each Party hereby covenants and agrees that it will execute and deliver such deeds and other documents as may be required to implement any of the provisions of this Agreement.

16.4     The failure of any Party to insist on strict performance of a covenant hereunder or of any obligation hereunder will not be a waiver of such Party’s right to demand strict compliance therewith in the future.

16.5     This Agreement may be executed in multiple copies, each of which will for all purposes constitute one Agreement, binding on the Parties, and each Party hereby covenants and agrees to execute all duplicates or replacement counterparts of this Agreement as may be required.

16.6     In the event any provision, clause, sentence, phrase, or word hereof, or the application thereof in any circumstances, is held to be invalid or unenforceable, such invalidity or unenforceability will not affect the validity or enforceability of the remainder hereof, or of the application of any such provision, sentence, clause, phrase, or word in any other circumstances.

17. ENTIRE AGREEMENT

17.1    This Agreement constitutes the entire agreement between the Parties and supersedes all previous discussions, correspondence, negotiations, arrangements, understandings and agreements between them relating to its subject matter.

17.2     Each Party acknowledges that in entering into this Agreement it does not rely on, and will have no remedies in respect of, any representation or warranty (whether made innocently or negligently) that is not set out in this Agreement.

17.3     Nothing in this clause will limit or exclude any liability for fraud.

17.4     No alteration to or variation of this Agreement will take effect unless and until the same is in writing and signed on behalf of each of the Parties by a duly authorised representative.

18. LAW AND JURISDICTION

18.1    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) will be governed by and construed in accordance with the laws of Ireland.

18.2     Each Party irrevocably agrees that the courts of Ireland will 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 on the Order Form.

19. CONTACT US

To contact us, please email support@bizimply.com.