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Appogee HR Consulting Terms and Conditions
Updated September 2023
- Interpretation
In these terms & conditions, unless the context otherwise requires, the following words have the following meanings:
1.1. "Appogee HR”, “We/Us/Our" means Appogee HR Limited, a company incorporated in England and Wales (Company Number 9638167), having its registered office at Lily Hill Park, Lily Hill Road, Bracknell RG12 2SJ;
1.2. “Commencement Date” means the date set out in the Order Form as the date from which the Services shall commence;
1.3.“Confidential Information” means materials, data, information and know-how, regardless of form, transmitted to either Party by or on behalf of the other Party in connection with the Contract that the disclosing Party has identified as being proprietary and/or confidential or which, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential;
1.4. "Contract" means the Order Form or Service Specific Terms (as applicable) and these terms and conditions;
1.5. "Customer”, “You/You/Your" means the person, organisation or company who enters into an Order Form for the provision of Services; .
1.6. “Fee” means the fee(s) payable for the Services as set out in the Order Form;
1.7. “Intellectual Property Rights” means patents, rights to inventions, copyright and related rights, moral rights, trade marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world;
1.8. “Order Form” means the order form, statement of work or services schedule entered into between the Parties that includes details of the Services to be provided, together with details of applicable Service Specific Terms;
1.9. "Parties" means We and You;
1.10 “Service Specific Terms” means the service specific terms, acceptable use policies or end user licence agreement(s), as set out in the Order Form;
1.11. “Services” means the services to be provided by Appogee HR (or its subcontractors) to the Customer, as detailed in the Order Form and which may consist of, amongst others, support services; cloud services; professional services; training services; and/or consultancy, software development and/or customisation services;
1.12. “Software” means any third party software operated and/or provided by a Third Party Software Provider, and licensed to the Customer under, or in connection with, this Agreement, as further detailed in an Order Form and subject always to the applicable Service Specific Terms referenced in the Order Form;
1.13. “Third Party Software Provider” means the third party provider of Software as specified in an Order Form;
The headings in these Terms are for convenience only and shall not affect their interpretation. - Commencement and Duration
2.1. The Contract is formed when the Order Form has been signed by both Parties and shall continue until the Services have been provided in accordance with the Order Form unless terminated earlier in accordance with this Contract. Appogee HR shall provide the Services set out in the Order Form to the Customer from the Commencement Date. - Services
3.1. Appogee HR agrees to provide the Services to the Customer with reasonable skill and care and in accordance with best practice in its industry.
3.2. Appogee HR will use reasonable endeavours to provide the Services on the dates set out in the Order Form but time is not of the essence and all dates are only estimated and not guaranteed.
3.3. Unless otherwise agreed in the Order Form, all Services are provided on a time and materials basis only.
3.4. The Customer shall provide Appogee HR employees, agents, contractors and/or subcontractors access, in a timely manner, to sufficient and adequate facilities, equipment, power supplies, computers and systems to allow Appogee HR to provide the Services in accordance with the Contract.
3.5. Customer shall provide to Appogee HR in a timely manner all documents, information, items and materials in any form (whether owned by the Customer or third party) reasonably required by Appogee HR in connection with the Services and ensure that they are accurate and complete in all material respects.
3.6. Customer will take all reasonable steps to provide a safe working environment that complies with all health and safety laws and regulations for Appogee HR’ employees agents, contractors, and/or subcontractors at the Customer’s premises.
3.7. Customer shall obtain and maintain all necessary licences and consents and comply with all relevant legislation as required to enable Appogee HR to provide the Services.
3.8. Customer shall co-operate with Appogee HR on all matters relating to the Services. - Fee
4.1. In consideration for the provision of the Services, the Customer shall pay Appogee HR the Fee in accordance with the Contract.
4.2. Unless otherwise agreed in an Order Form, Appogee HR shall invoice the Customer at cost for travel, accommodation and/or any other reasonable expenses incurred whilst providing the Services.
4.3. Appogee HR may alter the Fee on written notice to the Customer when required to reflect any material increase in Appogee HR’ costs associated with the performance of the Contract, due to any factor beyond the reasonable control of Appogee HR. - Invoicing and Payment Terms
5.1. Unless otherwise agreed in the Order Form, the Fee for Services will be invoiced on the date that the Order Form is signed.
5.2. The Customer shall pay all invoices in full without deduction or set off in pounds sterling, unless otherwise stated in the Order Form within 30 days from the date of the invoice (the “Due Date") to a bank account nominated by Appogee HR.
5.3. If the Customer fails to pay Appogee HR any sum due by the Due Date and, provided it has still not been paid within 7 days of being notified by Appogee HR to do so, in addition to any other remedies, Appogee HR shall be entitled at its sole discretion to:
5.3.1. terminate the Contract in whole or in part, and/or suspend provision of the Services; and/or
5.3.2. charge interest on the balance outstanding of any invoice at the rate of 4% above the Bank of England base rate in force from time to time, and Appogee HR may in addition charge the Customer the reasonable costs of any recovery action. - Warranties
6.1. Save as expressly provided in these terms & conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law. - Liability
7.1. The parties agree that Appogee HR’s total aggregate liability in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise arising in connection with the performance or contemplated performance of the Contract shall not in any event exceed 125% of the Fee paid or payable by the Customer for the relevant Services;
7.2. Appogee HR shall not in any circumstances be liable whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
7.2.1. any loss of income or profit, business, business opportunities, revenue, turnover, reputation or goodwill;
7.2.2. any loss or corruption of data or information;
7.2.3. any loss of anticipated savings or wasted expenditure;
7.2.4. any loss or liability in respect of any other contract;
7.2.5. any indirect, special or consequential losses,
which arise out of or in connection with the Contract and/or the provision of the Services or their use by the Customer.
7.3. Clause 7.2 shall not prevent claims which fall within clause 7.1 for:
7.3.1. direct financial loss that are not excluded under any of the categories set out in clause 7.2; or
7.3.2. tangible property or physical damage.
7.4. The Customer agrees to indemnify Appogee HR for any losses or liability that it incurs as a result of the Customer’s use of the Services or the Customer’s breach of any Service Specific Terms or these terms and conditions. .
7.5. Nothing in the Contract excludes or limits either party’s liability for: (a) death, personal injury or tangible personal property damage resulting from its negligence or the negligence of its employees or agents; (b) its fraud or fraudulent misrepresentation; (c) its payment obligations under the Contract or (d) any matters (other than 7.4 (a) and (b)) for which liability cannot be excluded or limited under applicable law.
7.5. Nothing in the Contract excludes or limits either Party’s liability for: (a) death or personal injury resulting from its negligence or the negligence of its employees or agents; (b) its fraud or fraudulent misrepresentation; (c) its payment obligations under the Contract or (d) any matters for which liability cannot be excluded or limited under applicable law.
7.6. The parties agree the provisions of this clause are reasonable and a fair apportionment of risk bearing in mind the amount being charged by Appogee HR for the Services. - Termination
8.1. Either Party may terminate the Contract and any associated Order Forms immediately upon written notice to the other Party in the event of any material breach, which if remediable has not been remedied within thirty (30) days of receipt of notice to do so.
8.2. Appogee HR may terminate the Contract immediately upon written notice to the Customer if the Customer becomes insolvent, enters into liquidation, passes a resolution for its winding up, has a receiver, manager, trustee or similar officer appointed over the whole or any part of its business or assets, enters into administration, makes any composition or arrangement with its creditors or takes or suffers any similar action in consequence of its debt, or ceases or threatens to cease to trade.
8.3. Appogee HR may, by giving the Customer not less than 14 days’ written notice, terminate:
8.3.1. the Contract or provision of the Software or any Order Form if the Customer fails to pay the Fees by the Due Date;
8.3.2. the Contract in the event that (or Appogee HR reasonably believes that) the Customer breaches (or has breached) any of these terms and conditions or any applicable Service Specific Terms; and/or; and/or
8.3.3. the Contract if the Third Party Software Provider no longer sells or makes available the relevant Software, or if the contract between the Customer and the Third Party Software Provider relating to the provision of the Software is terminated for any reason whatsoever, or if the agreement between Appogee HR and the Third Party Software Provider under which Appogee HR has the right to resell the Software, is terminated.
8.4. On the termination of the Contract all rights and obligations of the parties under the Contract shall automatically terminate except for such rights of action as shall have accrued prior to such termination and any obligations which expressly or by implication are intended to continue in force on or after such termination.
8.5. On termination of the Contract the Customer will pay Appogee HR all sums due, otherwise invoiced and not yet due and shall pay for any Services which have not yet been invoiced, but which have been provided. .
8.6. Should the Customer’s licence to use the Software terminate for any reason preventing Appogee HR from performing any of the Services or continued provision of the Services as set out in the Contract, the Customer shall not be entitled to a refund of any Fee (or portion thereof) paid in advance and it will indemnify Appogee HR for any loss Appogee HR suffers as the result of such early termination - Confidential Information
9.1. Each Party shall retain in confidence and require its employees and directors, to retain in confidence all Confidential Information.
9.2. Where a Party receives Confidential Information it shall retain such Confidential Information in as secure a manner as reasonably possible, but in no event less secure than the receiving Party retains its own Confidential Information. Confidential Information shall remain the sole property of the disclosing Party and shall not be disclosed to any third party without the express written consent of the disclosing Party (except to directors, contractors or sub-contractors or, solely for the receiving Party’s internal business needs, to consultants or advisors, each of whom must be bound by a written agreement with the receiving Party to maintain the confidentiality of such Confidential Information in a manner consistent with this Agreement).
9.3. The Confidential Information shall only be used for the purposes of the Contract in respect of which it was disclosed or, if permitted explicitly or tacitly, in respect of other Contracts between the Parties
9.4. Confidential Information shall not include any information that:
9.4.1. is at the time of disclosure or subsequently becomes publicly available without the receiving Party’s breach of any obligations owed to the disclosing Party; or
9.4.2. the receiving Party can demonstrate was known to it prior to the disclosing Party’s disclosure of such information to the receiving Party or became known to the receiving Party from a source other than the disclosing Party other than by the breach of an obligation of confidentiality owed to the disclosing Party; or
9.4.3. is independently developed by the receiving Party.
9.5. The restrictions in this clause shall not apply to the extent Confidential Information is required to be disclosed or used in accordance with applicable law or a court order, provided the other Party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production.
9.6. This clause shall survive termination of the Contract. - Data Processing Obligations
10.1. For the purposes of this clause, unless otherwise defined, any data protection related terms shall have the meaning associated with them in the UK GDPR (being Regulation (EU) 2016/679 of the European Parliament and of the Council of 27th April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (General Data Protection Regulation) as it forms part of the law of England and Wales, Scotland and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018).
10.2. For the purposes of the Services both Parties agree that they shall receive personal data as controllers. Both Parties agree to comply with their legal obligations in respect of such personal data.
10.3. To the extent that the Services are amended and We process personal data, for the purposes of the Services, as a processor on Your behalf, both Parties shall comply with their data processing obligations set out in the Appogee HR Data Processing Agreement https://www.appogeehr.com/data-processing-agreement/. - Intellectual Property Rights
11.1. Each Party owns, or has the rights to use, all Intellectual Property Rights owned or used by it prior to the date of this Agreement ("Background IPR"). Each Party (or its licensors) shall retain ownership of all Intellectual Property Rights in their Background IPR.
11.2. All Intellectual Property Rights in the results of the Services ("Foreground IPR") shall be owned by Appogee HR, and Appogee HR hereby grants the Customer a non-exclusive, perpetual, non-sublicensable, non-transferable licence to use the Foreground IPR to the extent necessary to receive the Services .
11.3. The Customer acknowledges that Appogee HR provides similar Services as those provided under the Contract to other customers and that nothing in this Contract shall be construed to prevent Appogee HR from using its learnings, ideas and knowledge (even if acquired through providing the Services) from carrying out such business activities, or from acquiring, licensing, marketing, distributing, developing for itself or others, or have others develop for it, similar products, services or materials performing the same or similar functions to the Services contemplated by this Contract or any Order Form. Appogee HR has the right to retain and use copies of the output of the Services, but acknowledges that its rights do not include rights to distribute, disclose or create derivative works from the Customer’s Confidential Information that is incorporated into the output of the Services. - Force Majeure
12.1. Appogee HR shall not be liable for any delay or for the consequences of any delay in performing any of its obligations under the Contract if such delay is due to any cause whatsoever beyond its reasonable control (which shall include but not be limited to default of suppliers or sub-contractors, power or telecommunications failures or outages, equipment failure) and Appogee HR shall be entitled to a reasonable extension of the time for performing such obligations. If such delay or failure persists for more than six (6) weeks then either Party may terminate the Contract without further liability. - Assignment and other Dealings
13.1. The Customer shall not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any of its rights and obligations under the Contract.
13.2. Appogee HR may assign this Contract at any time on written notice to the Customer. - Notices
14.1. Any notice to a Party under the Contract shall be in writing, signed by or on behalf of the Party giving it, and shall, unless delivered to a Party personally, be left at, or sent by prepaid first class post, prepaid recorded delivery or email to the address of the Party as set out in the Contract or as otherwise notified in writing from time to time and shall have effect 2 days after posting or after one (1) day if sent by email. . - Non-Solicit
15.1. Customer shall not, during the Term, and for a further period of six (6) months after the termination or expiry of the Contract, solicit any person employed by Appogee HR who has been actively involved in the performance of the Services without the express prior written consent of Appogee HR.
- Variation
16.1. No variation of the Contract shall be binding unless agreed in writing between the authorised representatives of Appogee HR and Customer. - Waiver of remedies
17.1. No failure or delay by either Party in exercising any of its rights under the Contract shall be deemed to be a waiver of that right, and no waiver by either Party of any breach of the Contract by the other shall be considered as a waiver of any subsequent breach of the same or any other provision. . - Severability
18.1. In the event that all or any part of the Contract is determined by any competent authority to be be invalid, unlawful or unenforceable to any extent such term, condition or provision shall to that extent be severed from the remaining provisions which shall continue to be valid and enforceable to the fullest extent permitted by law. - Relationship of the parties
19.1. Nothing in the Contract is intended to, or shall be deemed to, establish any agency relationship, partnership or joint venture between the Parties.
19.2. Each Party confirms it is acting on its own behalf and not for the benefit of any other person. - Exclusion of third party rights
20.1. The provisions of the Contracts (Rights of Third Parties) Act 1999 shall not apply to the Contract. - Governing law and jurisdiction
21.1. The Contract and any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with it or its subject matter or formation shall be governed by and construed in accordance with the laws of England and Wales.
21.2. Each Party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim (including non-contractual disputes or claims) arising out of or in connection with the Contract or its subject matter or formation.
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