APPOGEE HR TERMS OF SERVICE V4.1.1
1. BASIS OF CONTRACT
If You electronically accept, or execute and deliver, these Terms of Service or otherwise use the online Appogee HR and/or Appogee Leave and/or Appogee Goals services and Software as described on our Websites (collectively the “Services”) You agree to be bound by these Terms of Service which shall form the contract between Customer and Appogee HR Limited in relation to the provision of the Services, to the exclusion of any other terms and conditions “Contract”. If You are entering into this agreement on behalf of a company or other legal entity, You represent that You have the authority to bind such entity and its affiliates to these Terms of Service, in which case the terms “You” and “Your” shall refer to such entity and its affiliates. If You do not have such authority, or if You do not agree with these Terms of Service, You must not accept this agreement and may not use the Services. Where the context so requires Customer includes Your Authorised Users. No oral warranties or representations shall bind Us.
2. YOUR SUBSCRIPTION
2.1. In consideration of payment of the Subscription Fees, We will provide Customer with User Logins or the facility via an Admin Console to create User Logins for the number of Authorised Users for whom you have purchased a Subscription to access the Services during the Subscription Period.
2.2. Customer shall be responsible for the accuracy of completing the online registration form or purchase order form and for giving AppogeeHR any information necessary to enable AppogeeHR to perform Our obligations under the Contract.
2.3. The Contract between Appogee HR Limited and Customer shall come into effect when We accept Customer’s Subscription. No Subscription shall be deemed accepted by AppogeeHR until confirmed by email by AppogeeHR.
2.4. We shall have the right to refuse to accept any Subscription placed by Customer online through our Websites or online Marketplace or purchase order form.
3. YOUR USE OF THE SERVICES
3.1. Customer will not:
3.1.1. share User Login details with any third party, share User Login access with multiple Authorised Users or provide access to the Services for the benefit of third parties;
3.1.2. alter any part of the Services, remove any notice of proprietary rights from the Services or reverse engineer the Services;
3.1.3. contest our Intellectual Property Rights in the Services.
3.2. Customer will not use the Services:
3.2.1. to post or transmit any material that is threatening, defamatory, obscene, indecent, seditious, offensive, pornographic, abusive, liable to incite racial hatred, discriminatory, menacing, scandalous, inflammatory, blasphemous, in breach of confidence, in breach of privacy or which may be detrimental to Our reputation or to the reputation of any third party, cause annoyance or inconvenience;
3.2.2. to post or transmit unsolicited, unauthorised, promotional material, ‘junk mail’, ‘spam’, ‘chain letters’,
3.2.3. to post or transmit any material for which Customer has not obtained all necessary consents, licences and/or approvals or which would infringe the trademarks, copyright or Intellectual Property Rights of third parties;
3.2.4. in any way which constitutes or encourages conduct that would be considered a criminal offence, give rise to civil liability, or otherwise be contrary to the law of or infringe the rights of any third party in the UK or in any other country in the world;
3.2.5. in breach of the Google Acceptable Use Policy to the extent required by Google; and/or
3.2.6. in anyway which is technically harmful (including without limitation, using the Services to transmit or post computer viruses, logic bombs, trojan horses, worms, harmful components, corrupted data or other malicious software or harmful data).
3.3. Customer is solely responsible for the security any User Login and Admin Console access and You shall immediately notify Us if you are aware of any breach of security including breach of username and password or related Google or Microsoft Account associated with User Logins.
3.4. Customer is responsible for configuring their own information technology, device platforms and security software (including anti-virus software) in order to access or use the Services.
3.5. We may at any time take legal action as a result of breaches or suspected breaches of this clause, any applicable laws or regulations and/or where Our rights are threatened or infringed.
3.6. The use of the Services are not intended to create obligations under HIPAA, and we make no representations that the Services satisfy HIPAA requirements, and customers should not use the Services to store protected health information without obtaining the necessary authorisations.
3.7. We may at Our sole discretion, suspend or cancel your Subscription or access to the Services either for all Authorised Users or for individual Authorised Users if Customer breaches any of these Terms of Service.
4. APPOGEE HR AND APPOGEE LEAVE FEATURES
4.1. Software provided with the Services may include an Appogee HR or Appogee Leave mobile client. The use of this Software requires the then current or previous versions of Android.
4.2. 3rd party application integration: To integrate the Services with an existing authentication service (e.g. G Suite, Office 365) or to permit data transfer between the Services with other applications (e.g. Google Drive, Outlook, Xero etc.) the Customer and/or Authorised Users must grant the appropriate access rights (e.g. permit access by the Services to the Google Calendar API, User API, Email Settings API, Profiles API, Directory API, Charts API and others as indicated by the Services).
4.3. Customer Data stored in Appogee HR or Appogee Leave means all data provided or uploaded by Customer into the Services including HR records (e.g. employee details, record attachments, time off, sickness, vacation etc.) together with associated activity or approval records.
5. TRIAL PERIOD AND FREE LICENCES
5.1. If You register for a free trial and We accept Your registration, We will make one or more Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Services to which You subscribe; the “Trial Period”.
5.2. There may be limitations to the functionality of the Services or numbers of User Logins permitted during a Trial Period or Free Licence Period.
5.3. Any entitlement to Free Licences obtained during a “Trial Period” as part of a promotion or incentive scheme will continue for a period of 12 months from date of grant unless otherwise specified; the “Free Licence Period”. In the event we grant you Free Licenses and either the Free Licence Period expires, or you do not make use of the Services for any 60 day period, We may terminate Your entitlement to Free Licenses.
5.4. All provisions of these Terms of Service except the requirement to pay a Subscription Fee and the benefits of the Service Level Agreement will apply during your Trial Period or Free Licence Period, and additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into these Terms of Service by reference.
5.5. There shall be no obligation for Us to retain or archive any Customer Data saved during your Trial Period unless Customer purchases a paid Subscription to the same Services as those covered by the trial before the end of the Trial Period.
6. SERVICE LEVELS AND SUPPORT
6.1. We will use Our reasonable endeavours to ensure that the Services are available in accordance with our Service Level Agreement.
6.2. Access to the Services may be suspended temporarily and without notice in the case of system failure, maintenance or repair, failures in the underlying hosting platform or for reasons beyond Our control.
6.3. Customer or Reseller will, at its own expense, respond to questions and complaints from Authorised Users or third parties relating to Customer’s or Authorised Users use of the Services. Customer or Reseller will use its reasonable endeavours to resolve support issues before escalating them to Us.
6.4. We will respond to support requests from Customer Administrators by email or through our support portal as described in the Appogee HR Support webpage.
7. MODIFICATION OF SERVICES AND URL TERMS
7.1. Modifications to the Services. We may make commercially reasonable changes, enhancements or modifications to part or all of the Services from time to time. This may include discontinuing a Service or any aspect or feature thereof. If We make a material change to the Services, We will inform Customer via the Appogee HR Blog or such method as We may elect provided that Customer has subscribed with Us to be informed about such changes.
7.2. Modifications to URL Terms. We may make commercially reasonable changes to these Terms of Service or Data Processing Agreement from time to time. The URL Terms are the currently applicable terms of service. If We make a material change to any of the URL Terms, We will inform Customer by sending an email to the Administrator email Address or alerting Customer via the Admin Console. If the change has a material adverse impact on Customer and Customer does not agree to the change, Customer must so notify Us via Appogee HR Support within thirty days after receiving notice of the change. If Customer notifies Us as required, or Reseller notifies Us on Customer’s behalf, then Customer will remain governed by the terms in effect immediately prior to the change until the end of the then-current Subscription Period for the affected Services. If the affected Services are renewed in accordance with this Contract, they will be renewed under the then current URL Terms.
8. FEES, PAYMENT AND TERM
8.1. In consideration of provision of the Services, Customer will pay the Subscription Fees for the Subscription Period to Us or Reseller.
8.2. The Subscription Fees are exclusive of VAT or local taxes which shall be paid by Customer in addition.
8.3. If Customer does not pay any Subscription Fee when due We reserve the right (without prejudice to any other remedies We may have) to suspend and/or terminate Customer’s access to the Services.
8.4. Customer will pay all Subscription Fees due to Us under this Contract without any set-off, deduction, counterclaim and/or other withholding of monies.
8.5. Payment of Subscription Fees shall not be deemed to be made until We have received cleared funds in respect of the full amount outstanding.
9.1. This Contract will terminate on:
9.1.1. expiry of the paid Subscription Period if not renewed; or
9.1.2. on termination of the Free Licence Period unless a paid Subscription is purchased or a new entitlement to Free Licences is obtained under any incentive program offered by Us at renewal time; or
9.1.3. on expiry of any Trial Period.
9.2. This Contract will terminate if Customer is in material breach of any of its conditions and if the breach is not remedied within a period of 7 days after We have given You written notice of it.
9.3. In the event Customer terminates the Subscription before the end of the Subscription Period or in the event that the number of Authorised Users for which Customer has paid the Subscription Fee falls below the threshold of the particular Subscription Fee rate band We will not provide any refund of the Subscription Fee.
9.4. On termination of this Contract:
9.4.1. Customer will cease accessing the Services and take reasonable steps to delete the Software and any Content from Customer electronic Media, including Customer intranet and electronic storage devices.
9.4.2. Customer shall export or take copies of any Customer Data required before the date of termination. In the event that Customer wishes for Customer Data to be deleted immediately after termination, they may raise a case with Appogee Support to request data to be deleted. We will action this request within 5 working days subject to validation of the request authorisation.
9.4.3. We will otherwise retain Customer Data for 60 days after termination after which all Customer Data may be deleted by Us..
10.1. Customer acknowledges that all of the Content contained within the Services is Our Confidential Information which Customer will hold in confidence. This obligation shall remain in full force and effect after termination of the Contract for any reason.
11. INTELLECTUAL PROPERTY RIGHTS AND CUSTOMER DATA
11.1. All Intellectual Property Rights in the Content, Software and the Services belongs to Us. We grant a non-exclusive licence during the Subscription Period to Customer and Authorised Users to use the Content and access the Services for internal business purposes only and the Software for the purpose of accessing the Services only. Customer is prohibited and shall procure that Authorised Users are prohibited from copying, amending, and/or modifying any part or all of the Content and/or Software without Our express written consent.
11.2. All Intellectual Property Rights in the Customer Data belongs to Customer. Customer will ensure that Customer Data complies with applicable laws and regulations. Customer retains ownership and possession of the Customer Data at all times, and retains control of the Customer Data at all times except to the extent that Customer specifically authorizes Us to exercise certain controls or modifications, as selected by Customer within the Services, over the Customer Data.
11.3. We may use anonymized statistical and summary information derived from such Customer Data and aggregate it with statistical information from other customers (“Non-Identifiable Summary Data”) for Our business purposes, including without limitation for analyzing customer needs and improving Our Services, and We shall own all right, title and interest in any such Non-Identifiable Summary Data.
12. DATA PROCESSING, SECURITY AND PRIVACY
12.1. Customer warrants to Us that Customer has complied with all provisions of the EU Directive, GDPR and the DPA Act relevant to the passing of any Personal Data to Us, including without limitation, that Customer have obtained all necessary consents from relevant individuals whose Personal Data Customer may disclose to Us or upload to our Services from time to time.
12.2. In these Terms of Service the terms “personal data”, “processing”, “controller” and “processor” shall have the meanings ascribed to them in the EU Directive. The parties agree and acknowledge that the DPA Act, the EU Directive and GDPR when in force apply to the processing of Personal Data.
12.3. Processor. For the purposes of this Contract and in respect of Customer Personal Data, the parties agree that Customer shall be the controller and We shall be a processor. Within the scope of this Contract, Customer shall comply with its obligations as a controller and We shall comply with our obligations as a processor under the DPA Act, EU Directive and GDPR.
12.4. Scope of Processing. We will process Customer Personal Data for the purposes of maintaining, improving and providing the Services and in accordance with applicable law. We will process Customer Personal Data in accordance with Customer’s written instructions provided that such Instructions are consistent with the Services capabilities. If We are unable to comply with Customer’s instructions because such instructions conflict with the Contract or the capabilities of the Services, We will notify Customer as soon as reasonably practicable.
12.5. Our Appogee HR Data Processing Agreement is deemed incorporated herein.
13.1. We may use Customer’s name and/or logo (the “Marks”) on our website, customer or vendor list (as applicable) or other marketing materials to refer to the relationship between the parties pursuant to this Contract. All such use shall be in accordance with Customer’s usage policies and guidelines if provided in writing to Us. If Customer objects to any such use or wishes to revoke its permission to use its Marks hereunder, We shall cease any such use promptly after receiving notification. Neither party’s use of the other party’s Marks implies or confers any endorsement by either party.
14. LIMITATION OF LIABILITY
14.1. Limited Liabilities:
14.1.1. Customer agrees that Our sole liability to Customer for a breach of this Contract is limited to damages of an amount of 125% of the Subscription Fee, other than for breaches of Our Appogee HR Data Processing Agreement for which our liability is limited to damages of an amount of ten times the Subscription Fee.
14.1.2. Neither party shall have liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise for any loss of profits; loss of data; loss of business; loss of anticipated savings, special damages; economic and/or other similar losses; loss of contracts and/or opportunity; damage to goodwill and/or reputation; in each case whether direct, indirect or consequential (howsoever caused) which arise out of or in connection with the Contract.
14.2. Unlimited Liabilities:
14.2.1. 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) obligations under Section 15 (Indemnification); (d) its infringement of the other party’s Intellectual Property Rights; (e) its payment obligations under the Contract; or (f) matters for which liability cannot be excluded or limited under applicable law.
15.1. Our Indemnification Obligations. We will defend Customer and its Affiliates participating under this Agreement (“Customer Indemnified Parties”), and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that Customer Indemnified Parties’ use in accordance with this Agreement of any of AppogeeHR Indemnified Materials infringes the third party’s Intellectual Property Rights.
15.2. Customer Indemnification Obligations. Unless prohibited by applicable law, Customer will defend AppogeeHR and its Affiliates and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from: (a) any Customer Indemnified Materials; or (b) Customer’s or an End User’s use of the Services in violation of section 3 “Your Use of the Services”.
15.3. Indemnification Exclusions. Sections 15.1 (AppogeeHR Indemnification Obligations) and 15.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from: (a) the indemnified party’s breach of the Agreement; or (b) a combination of AppogeeHR Indemnified Materials or Customer Indemnified Materials (as applicable) with materials not provided by the indemnifying party under the Agreement, unless the combination is required by the Agreement.
15.4. Indemnification Conditions. Sections 15.1 (AppogeeHR Indemnification Obligations) and 15.2 (Customer’s Indemnification Obligations) are conditioned on the following:
15.4.1. The indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 15.4(a) prejudices the defence of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Sections 15.1 (AppogeeHR Indemnification Obligations) or 15.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.
15.4.2. The indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
15.5.1. If AppogeeHR reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then AppogeeHR may, at its sole option and expense: (i) procure the right for Customer to continue using the Services; (ii) modify the Services to make them non-infringing without materially reducing their functionality; or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
15.5.2. If AppogeeHR does not believe the remedies in Section 15.5.1 are commercially reasonable, then AppogeeHR may suspend or terminate the impacted Services and provide Customer with a pro rata refund in respect of the suspended or terminated Services.
15.6. Sole Rights and Obligations. Without affecting either party’s termination rights, this Section 15 (Indemnification) states the parties’ sole and exclusive remedy under this Agreement for any third party allegations of Intellectual Property Rights Infringement covered by this Section 15 (Indemnification).
16. FORCE MAJEURE
16.1. We reserve the right to cancel or suspend Customer’s Subscription or to cancel this Contract (without liability to Customer) if we are prevented from or delayed in carrying on Our business due to circumstances beyond Our reasonable control including, without limitation, acts of God, governmental actions, war or national emergency, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party’s workforce), or internet failure, power failure, or failure, disruptions or changes in Google Cloud services or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials.
17.1. Severability. If any of the provisions of these Terms of Service is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of them will not be prejudiced.
17.2. Waiver. No forbearance or delay by either party in enforcing its respective rights will prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms will be deemed to be a waiver of any other right or of any later breach.
17.3. Rights of Third Parties. The parties to this Contract do not intend that any term of this Contract will be enforceable by virtue of the Contracts (Rights of Third Parties) Act 1999 by any person that is not a party to it.
17.4. Assignment. Customer shall not assign Their rights and/or obligations under this Contract without Our prior written consent. We shall be permitted to subcontract part or all of the Training Course and/or assign Our rights and/or obligations under this Contract.
17.5. Notices. Any notice given under this Contract by either party to the other must be in writing and may be delivered by raising a case with Appogee HR Support, personally or by first-class post, and in the case of post will be deemed to have been given two working days after the date of posting. Notices will be delivered or sent to the postal or email addresses of the parties on the order, online registration or to any other address notified in writing by either party to the other for the purpose of receiving notices after the date of this Contract.
17.6. Governing Law and Jurisdiction. This Contract is governed by and construed according to English law and the parties submit to the exclusive jurisdiction of the courts of England and Wales.
In these Terms of Service, unless the context otherwise requires:-
“AppogeeHR, We/Us/Ours” means Appogee HR Limited, a company incorporated in England and Wales (Company Number 9638167) having its registered office at Lily Hill House, Lily Hill Road,, Bracknell, Berkshire RG12 2SJ;
“Customer,You/Your/ Yours” means the person or company entering into this Contract with AppogeeHR by accepting these Terms of Service or using the Services.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“Authorised Users” means any individuals the Customer permits to use the Services;
“Customer Administrators” means Authorised Users who are also designated “Administrators” for the client domain(s) in the administration sections of our Services.
means an authorised AppogeeHR reseller partner who Customer is paying to provide access to and use of the Services;
“Contract” means these Terms of Service and the online subscription or purchase order form;
“Intellectual Property Rights” means any copyright, database right, know how, confidential information or other industrial or intellectual property right subsisting anywhere in the world and in any application for any of the above;
“Content” means all content accessible in the Services;
“Software” means any software or applications supplied by AppogeeHR which are installed by Customer to provide access to the Services;
“Subscription” means subscription to the Services by the online subscription, registration or purchase order form placed on AppogeeHR by Customer or a Reseller on behalf of Customer;
“Subscription Fee” means the subscription fee as set out on the Website or Our quotation or pricelist based on the specific services, the number of User Logins required and the user fee band and the Subscription Period;
“Subscription Period” means the period in respect of which a Subscription Fee is payable;
“Free Licence” means an entitlement to User Logins granted under and incentive scheme offered by AppogeeHR, these are either incremental to paid Subscription or standalone;
“Free Licence Period” means the period of validity of Free Licences, normally one year from date of grant unless otherwise specified at grant time, after which the entitlement expires;
“User Login” means any Authorised User’s personal subscription login details configured to access the Services including either a username and password specific to the Services or authorisation for authentication with a Google Apps account login;
“Admin Console” means the online administration console provided by AppogeeHR with the Services to configure functionality, reporting, User Logins and other administration functions;
“Google Cloud Services” means Google’s hosted or managed services including Google App Engine, Google Cloud SQL, Google Compute Engine, Google Big Query, G Suite and Google Maps as described at http://www.google.com/cloud;
“Google Acceptable Use Policy” means the Google Cloud Platform acceptable use policy listed at “https://developers.google.com/cloud/terms/aup”
“EU Directive” means Directive 95/46/EC of the European Parliament and of the Council on the Protection of Individuals with Regard to the Processing of Personal Data and on the Free Movement of Such Data and GDPR when it supercedes;
“GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing EU Directive;
“DPA Act” means the UK Data Protection Act 1998 and, when it comes into force and supercedes the former, the UK Data Protection Act 2018;
“Appogee HR Data Processing Agreement” means the data processing agreement as maintained at https://www.appogeehr.com/data-processing-agreement ;
“Customer Personal Data” means the personal data processed by or on behalf of AppogeeHR pursuant to this Contract; ‘ personal data’ has the meaning stated in the EU Directive;
“Customer Data” means data provided and uploaded to the Services by Customer, or Reseller on behalf of Customer, or End Users as more specifically identified in clause 4 above;
“Service Level Agreement” means the service level agreement described on the AppogeeHR website at https://www.appogeehr.com/service-level-agreement/ ;
“Data Incident” means (a) any unlawful access to Customer Data stored in the Services or systems, equipment, or facilities of Appogee HR or its Subprocessors, or (b) unauthorized access to such Services, systems, equipment, or facilities that results in loss, disclosure, or alteration of Customer Data;
“AppogeeHR Indemnified Materials” means AppogeeHR’s technology used to provide the Services and AppogeeHR’s trade names, trademarks, logos, domain names, and other distinctive brand features
“Customer Indemnified Materials” means the Customer Data and Customer trade names, trademarks, logos, domain names, and other distinctive brand features.
“Indemnified Liabilities” means any (i) settlement amounts approved by the indemnifying party; and (ii) damages and costs finally awarded against the indemnified party and its Affiliates by a court of competent jurisdiction.
“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal.
“Appogee HR Support” means the support service for Customer Administrators as described at https://www.appogeehr.com/support/ ;
“Appogee HR Blog” means the blog located at https://www.appogeehr.com/blog/ ;
“URL Terms” means these Terms of Service as maintained at https://www.appogeehr.com/terms-of-service/ and those of the Appogee HR Data Processing Agreement as maintained at https://www.appogeehr.com/data-processing-agreement ;
“Marketplace” means any third party marketplaces including the G Suite Marketplace and Microsoft Office Store which allows the provisioning of and registration for the Services;
“Websites” means the Appogee HR websites at https://www.appogeehr.com which described the Services and provide links to provision and register for the Services;
Appogee HR Terms of Service – V4.1.1 Updated 30th April 2019