Software as a Service Agreement – July 1st 2021
The Agreement shall commence on the date when an Order Form has been signed by Arctic Shores Limited (“Arctic Shores”) and the individual or entity that has entered into the Agreement (“You”, “Your”) and shall continue until either party gives to the other party written notice to terminate in accordance with the terms of this SAAS Agreement. The Agreement sets forth the terms and conditions that govern subscriptions and orders placed by You for Services under the Agreement.
1. SERVICES
1.1.Subject to You paying the Subscription Fee in accordance with this Agreement, the restrictions set out in this clause 1 and the other terms and conditions of this Agreement, Arctic Shores hereby grants to You a non-exclusive, non-transferable right, without the right to grant sublicences, to permit the Authorised Users to use the Services and the Service Data during the Subscription Period solely for Your internal business operations and for the Permitted Purpose.
1.2.Save for the Candidate Data (which will be delivered through the Client System) or as otherwise agreed between the parties, any deliverables (including Service Data) agreed to be provided to You under this Agreement shall be delivered via the Account area of the Platform. Where the parties have agreed that the Candidate Data is to be provided in a Word based visualised form on the Platform (in addition to it being sent to You through the Client System) such Candidate Data shall be available for access and download from the Account area of the Platform.
1.3. You are responsible and liable for the acts and omissions of Your Authorised Users and Third Party Contractors and shall ensure that they comply with the provisions of this Agreement. In particular, without limitation, You shall ensure that the Authorised Users, and Third Party Contractors comply with the provisions of clauses 2.2 to 2.4 (inclusive), 4, 6, and 8. You are fully responsible for all and any use of Your Account and the Service Data.
1.4. You are responsible and liable for the acts and omissions of Candidates using the App.
1.5 Any reference in this Agreement to an “Assessment” means an active game based assessment of Candidates for the role You are looking to recruit using a single Assessment Template or Custom Assessment Template made available to Candidates through the App. Authorised Users create “Assessments” by either choosing an Assessment Template for the role You are looking to recruit for (UNA Access, UNA Pro), or, alternatively, the creation of a Custom Assessment Template (UNA Pro).
2. USE OF THE PLATFORM AND THE APP
2.1. You acknowledge and agree that:
2.1.1. the Platform may only be accessed and used by Authorised Users through the Account for the Permitted Purpose;
2.1.2. the App may only be accessed and used by Candidates for the Permitted Purpose; and
2.1.3. Candidates must accept the Candidate Terms of Use prior to using the App.
2.2. You shall:
2.2.1. keep Your Account registration and contact details up to date;
2.2.2. not operate more than one Account;
2.2.3. not permit access to Your Account, the Platform, or the App to any person other than as permitted under clause 2.1;
2.2.4.not exceed the maximum number of permitted concurrent Live Assessments purchased by you in accordance with the Subscription Fee;
2.2.5. notify Arctic Shores immediately if You become aware of any unauthorised access to or use of Your Account, the Platform or the App;
2.2.6. ensure that each Authorised User shall keep a secure password for his use of the Services and each Authorised User shall keep his password confidential;
2.2.7. comply with any additional licence terms applicable to third party software forming part of the Services that we make you aware of from time to time.
2.3. You shall not, and shall procure that none of Your Authorised Users shall, access, store, distribute or transmit any Viruses, or any material during the course of Your use of the Platform that:
2.3.1 is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
2.3.2 facilitates illegal activity;
2.3.3. depicts sexually explicit images;
2.3.4. promotes unlawful violence;
2.3.5. is discriminatory based on race, gender, colour, religious belief, sexual orientation or disability; or
2.3.6 is otherwise illegal or causes damage or injury to any person or property
and Arctic Shores reserves the right, without liability or prejudice to its other rights, to disable Your access to the Platform and/or such material if there is a breach of this clause 2.3 until such breach is remedied.
2.4. 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, You shall not:
2.4.1. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit or distribute all or any portion of the Platform or App in any form of media or by any means; or
2.4.2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Platform or App; or
2.4.3. access all or any part of the Services in order to build a product or service which competes with the Services; or
2.4.4. use the Services to provide services to third parties; or
2.4.5 license, sell, rent, lease, transfer, assign, distribute, display, disclose or otherwise commercially exploit or otherwise make the Services available to any third party, except the Authorised Users and Candidates (in each case solely for the Permitted Purpose); or
2.4.6. attempt to obtain, or assist third parties in obtaining, access to the Services other than as provided under this clause 2; or
2.4.7. introduce or permit the introduction of, any Virus into Arctic Shores’ network and information systems.
2.5. The rights provided under this clause 2 are granted to You only, and unless otherwise agreed are not granted to any subsidiary or holding company of You.
3. PROVISION OF THE SERVICES AND TECHNICAL SUPPORT SERVICE
3.1. Arctic Shores shall perform the Services substantially in accordance with the Documentation and with reasonable care and skill. This obligation shall not apply to the extent that any non-compliance is caused by Your use of the Services contrary to the Documentation or Arctic Shores’ reasonable instructions, or by modification or alteration of the Services by any party other than Arctic Shores or Arctic Shores’ duly authorised contractors or agents.
3.2. If Arctic Shores does not comply with clause 3.1, Arctic Shores will, at its expense, use all reasonable endeavours to correct any such non-compliance in accordance with the terms of the Technical Support Services. This constitutes Your exclusive remedy for any breach of clause 3.1
3.3. Subject to clauses 3.4, Arctic Shores shall use reasonable endeavours to ensure that the Platform, the Service Data hosted therein and the App (including the Candidate process and experience outlined above, to the extent that it is Arctic Shore’s responsibility under this Agreement), shall be available for access via the internet with 99.9% uptime availability over the Subscription Period other than during:
3.3.1. any periods of planned maintenance carried out during the maintenance window of 22:00 to 04:00 GMT; and
3.3.2. any unscheduled maintenance performed outside the maintenance window described above, provided that Arctic Shores has used reasonable endeavours to give You at least 2 hours’ prior notice.
3.4. Arctic Shores:
3.4.1. does not warrant that Your use of the Services will be uninterrupted or error-free, or that the Services, Documentation and/or the information obtained by You through the Services will in each case meet Your requirements; and
3.4.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data and/or access to the App and/or the Platform over communications networks and facilities, including the internet, and You acknowledge that the Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
3.5. Provision of the Technical Support Service shall be undertaken for the duration of the Subscription Period.
3.6. Arctic Shores reserves the right to withhold the Technical Support Service in the event of non- payment or late payment under the terms of the Agreement.
3.7. The Technical Support Service consists of email support for technical issues for nominated Authorised Users.
3.8. Support requests will be accepted through the “Support Portal” which You may access via the Platform, or, where applicable, via email to Your Arctic Shores contact (as notified to You by Arctic Shores in writing from time to time).
3.9. Arctic Shores shall use reasonable endeavours to:
3.9.1. provide support 24 hours a day, 365 days a year;
3.9.2. acknowledge support requests within 2 hours by email (“Acknowledgement”); and
3.9.3. start work on the problem within 8 hours of the Acknowledgement.
3.10. We will work with You (and You shall provide reasonable assistance if requested by Arctic Shores) using reasonable endeavours to create a fix or workaround within two Business Days of the Acknowledgement for any technical issues.
3.11. The Technical Support Services listed at clauses 3.5 to 3.10 (inclusive) does not cover the operating systems of You or Candidates or any network connections, telecommunications or internet services or connections used by You or Candidates to access the App or the Platform. These remain the responsibility of You or the Candidate’s relevant service provider.
3.12. Arctic Shores is not responsible for any Candidate support requests unrelated to the use of the App.
4. YOUR OBLIGATIONS
4.1. You shall:
4.1.1. co-operate with Arctic Shores in all matters relating to the Services;
4.1.2. provide such information to Arctic Shores as Arctic Shores may reasonably request for the purpose of providing the Services and ensure that such information is accurate in all material respects;
4.1.3. ensure that Your network and systems comply with the relevant specifications provided by Arctic Shores from time to time;
4.1.4. be responsible for procuring, maintaining and securing Your network connections and telecommunications links from Your systems to Arctic Shores’ data centres, and all 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 the internet;
4.1.5. comply with all Applicable Law with respect to Your activities under this Agreement;
4.1.6. ensure that the Authorised Users use the Services and the Documentation in accordance with this Agreement; and
4.1.7. if Arctic Shores’ performance of any of its obligations under this Agreement is prevented or delayed by any act or omission by You or failure by You to perform any relevant obligation, Arctic Shores shall not be liable for any losses sustained or incurred by You whether in contract, tort (including negligence and breach of statutory duty howsoever arising) to the extent that these arise directly or indirectly from Arctic Shores’ failure or delay to perform any of its obligations.
5. LICENCE OF SERVICE DATA AND THE APP
5.1. Arctic Shores grants to You a non-exclusive, non-transferable licence to use the Platform and the App for the Permitted Purpose only in order to:
5.1.1. permit Authorised Users to access and view the Service Data on the Platform;
5.1.2. store the Candidate Data on the Client System;
5.1.3. distribute the Candidate Data to Authorised Users and the relevant Candidate using the Client System.
6. DATA PROTECTION
6.1. The terms and conditions of the Data Protection Appendix which can be found at https://www.arcticshores.com/terms/una-data-protection-addendum will apply to this Agreement and will govern the parties’ respective obligations in accordance with Applicable Law in respect of data protection.
7. SUBSCRIPTION FEE
7.1. In consideration of the provision of the Services, You shall pay the Subscription Fee (which permits You to use the Platform during the Subscription Period) to Arctic Shores in accordance with this Agreement. The Subscription Fee consists of a payment in respect of a maximum number of concurrent Live Assessments You may conduct at any one time within the Subscription Period, as selected by You in an Order Form or on the Arctic Shores’ self-serve platform known as UNA (or anything which replaces it from time to time). If You require the ability to perform additional concurrent Live Assessments within the Subscription Period, such additional Subscription Fees shall be pro-rated from the date of activation by Arctic Shores for the remainder of the Subscription Period.
7.2. Arctic Shores shall take payment of or invoice the Subscription Fee on the Commencement Date (and on the anniversary of each Subscription Period thereafter unless or until it is terminated in accordance with the provisions of this Agreement).
7.3. You shall pay all invoices issued by Arctic Shores under this Agreement within 30 days of the date of invoice and shall be paid in full and in cleared funds. Payment shall be made to the bank account nominated in writing by Arctic Shores.
7.4. The Subscription Fee excludes VAT and/or any other applicable sales tax which Arctic Shores shall add to its invoices at the appropriate rate which You shall additionally be liable to pay to Arctic Shores at the prevailing rate, subject to the receipt of an invoice which is valid for VAT and/or any other applicable sales tax.
7.5. You shall pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by Applicable Law). Arctic Shores may at any time, without limiting any other rights or remedies, set off any amount owing to it by You against any amount payable by Arctic Shores to You.
7.6. The Subscription Fee shall be paid in GB pounds sterling (£) unless otherwise agreed between the parties in writing.
7.7. Arctic Shores may increase the Subscription Fee at any time on at least 60 days’ prior written notice and such increased Subscription Fee shall take effect for the purposes of this Agreement with effect from the beginning of the next following Subscription Period.
7.8. If You fail to make any payment due to Arctic Shores by the due date for payment:
7.8.1. Arctic Shores may, without liability to You, disable Your password, Account and access to the Platform or any part of the Services;
7.8.2. Arctic Shores shall be under no obligation to provide any part of the Services while any invoice is not paid in accordance with clause 7.3;
7.8.3. You shall pay interest on the overdue amount at the rate of 4% per annum above the Bank of England’s base rate from time to time. Such interest shall accrue on a daily basis from the due date until actual payment of the overdue amount, whether before or after judgment. You shall pay the interest together with the overdue amount
8. CONFIDENTIALITY
8.1. Each party shall treat as strictly confidential all information disclosed to it by the other party which is not publicly known, including without limitation the other party’s business or financial information (together “Confidential Information”) during as well as after the termination of this Agreement. No party shall share any Confidential Information of the other party with any person other than its employees and agents having a need to know the same in connection with the performance of this Agreement. The parties shall ensure that their respective employees and agents are bound by obligations of confidentiality in respect of Confidential Information similar to those set out in this clause 8.
8.2. Confidential Information shall not include information which (i) was known already to the other party prior to its disclosure, (ii) is publicly known or becomes publicly known without the fault of the other party, (iii) was legally disclosed to the other party by a third party and without any limitations for disclosure and (iv) the parties have mutually agreed to be disclosed, be it to authorities or other specific persons.
8.3. The restrictions set out in this clause 8 shall not have the effect of prohibiting any disclosure by any party of any Confidential Information which it is required to disclose by law, by a court of competent jurisdiction, by the police or any law enforcement agency or by any governmental or regulatory body or stock exchange the rules of which it may be subject to from time to time.
8.4. No termination of this Agreement for any reason shall release either party from its obligations set out in this clause 8.
8.5. Arctic Shores may use Your name as a reference or in any advertising or promotional materials, press release, tender, proposal, speech, article or other similar material from time to time.
9. INTELLECTUAL PROPERTY RIGHTS
9.1. You acknowledge and agree that all right, title and interest to and all Intellectual Property Rights in the Services, the Platform, the App, and the Service Data shall be owned by and shall remain vested in Arctic Shores (or its licensors) and nothing in this Agreement shall grant to You any rights of ownership therein nor any licence save as expressly set out in this Agreement:
9.2. All right, title and interest to and all Intellectual Property Rights in the Client Materials (including Client Branding) remain vested in You (or Your licensors) and nothing in this Agreement shall grant to Arctic Shores any rights of ownership therein nor any licence save as expressly set out in this Agreement.
9.3. Each party shall do such things (including the execution of such documents) to give effect to the provisions of this clause 9.
9.4. You shall indemnify Arctic Shores against all Losses suffered or incurred by Arctic Shores as a direct result of any claim made against Arctic Shores for infringement of a third party’s Intellectual Property Rights arising out of or in connection with the use by Arctic Shores of any Client Materials in connection with the Services.
10. TERM AND TERMINATION
10.1. This Agreement shall be effective from the Commencement Date and shall continue for an initial period of one year and shall renew automatically for additional consecutive periods of one year (each year being a “Subscription Period”) unless or until it is terminated in accordance with the provisions of this clause 10.
10.2. Arctic Shores may terminate the Agreement immediately if the Subscription Fee for the current Subscription Period has not been paid within 60 days of the commencement of that Subscription Period.
10.3. Either party may terminate this Agreement at any time with effect from the end of the then current Subscription Period by giving at least 30 days’ notice in writing to the other party prior to the end of such Subscription Period.
10.4. This Agreement may be terminated by either party with immediate effect on notice in writing to the other party if:
10.4.1. the other party commits any material breach of this Agreement which is not capable of remedy;
10.4.2. the other party commits any material breach of this Agreement which is capable of remedy and fails to remedy such breach within 14 days of receipt of written notice requiring it to do so;
10.4.3. the other party suffers an Insolvency Event.
10.5. This Agreement may be terminated by Arctic Shores immediately by notice in writing to You on any breach by You of clause 2.
10.6. Upon termination or expiry of this Agreement for any reason:
10.6.1. all licences granted under this Agreement shall immediately terminate;
10.6.2. all of Your rights to access and use the Service and Service Data (with the exception of the Candidate Data) shall cease with immediate effect and You shall stop using the Services and the Documentation;
10.6.3. all rights of Arctic Shores to use any Client Materials shall cease with immediate effect. Any such Client Materials shall be either destroyed or returned to You within 7 days of termination;
10.6.4. all rights and liabilities of the parties relating to this Agreement already accrued to the effective date of termination or expiry shall be unaffected;
10.6.5. no refunds of any Subscription Fee or any other fee, charge or payment shall be given to You;
10.6.6. Arctic Shores shall be entitled to invoice You for any outstanding Subscription Fee which was not already invoiced at the date of termination or expiry of this Agreement. All such invoices and any outstanding invoices not yet paid shall be paid by You in accordance with the due dates set out in this Agreement; and
10.6.7. the parties’ rights and remedies that have accrued as at termination shall be unaffected.
10.7. The following clauses shall survive termination of this Agreement: 1.3, 1.4, 4(g), 6, 7, 8, 9, 10.6, 10.7, 11, 12, 13, 14, 15, 16, 17, 18, 19.
11. LIMITATION OF LIABILITY
11.1. Neither party excludes or limits liability to the other party for:
11.1.1. fraud or fraudulent misrepresentation;
11.1.2. death or personal injury caused by negligence; or
11.1.3. any matter in respect of which it would be unlawful for the parties to exclude or restrict liability.
11.2. Subject to clause 11.1, Arctic Shores shall not in any circumstances be liable to You whether in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for:
11.2.1. any loss of profits, anticipated profits, business, reputation or goodwill;
11.2.2. any loss or corruption of data or information;
11.2.3. loss of anticipated savings or wasted expenditure;
11.2.4. any loss or liability under or in relation to any other contract; or
(in each case whether direct or indirect).
11.2.5. any indirect, special, consequential or pure economic loss or damage.
11.3. Subject to clause 11.1 and clause 11.2, Arctic Shores’ total aggregate liability (whether in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise) arising out of or in connection with this Agreement shall in relation to events giving rise to liability in any Subscription Period in all circumstances be limited to the Subscription Fees in relation to that Subscription Period.
11.4. You shall have sole responsibility for:
11.4.1. all results obtained from Your use of the Services and the Documentation; and
11.4.2. any decision or action taken by You as a result of such use.
11.5. You acknowledge and agree that any services which are the subject of the Service Terms shall be subject to the terms of the Service Terms and accordingly Arctic Shores shall not in any circumstances be liable to You whether in contract, tort (including negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise for the same pursuant to this Agreement.
11.6. Each of the liability caps set out in this clause 11 shall operate as a separate liability cap for the matters covered by the liability cap in question.
12. WARRANTIES AND EXCLUSIONS
12.1. Arctic Shores warrants that it has the right to license the use of the Service Data, Platform and the App on the terms specified in this Agreement (subject to You obtaining all necessary consents and permissions from Candidates in connection with Candidate Data).
12.2. Except as expressly stated in this Agreement, all warranties implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
12.3. Arctic Shores is not an employment agency or employment business for the purpose of The Conduction of Employment Agencies and Businesses Regulations 2003 and does not introduce or supply work seekers to hirers (or vice versa). Accordingly:
12.3.1. You are recommended to advise each Candidate to be truthful and not to permit any third party to take the Assessment on his or her behalf. Candidate Data and Standard Data is automatically generated from the data and information supplied through the App by individual Candidates (in the case of Candidate Data) and users of the App, which may include Candidates (in the case of the Standard Data), and is dependent on the truthfulness of the information given by Candidates and other users, over which Arctic Shores has no control. As a result, the suitability (in any regard) of any Candidate or to the accuracy, completeness, currency, correctness, reliability, integrity or quality of any information contained in any Standard Data and Candidate Data is beyond the control of Arctic Shores and Artic Shores gives no warranty in respect of the same;
12.3.2. You are solely responsible for:
12.3.2.1. choosing Candidates to take the Assessment on the App;
12.3.2.2. any conclusions drawn from the Candidate Data by You; and
12.3.2.3. any decision taken by You to reject, shortlist, interview, recruit, employ or engage any Candidate or for any other decisions made in respect of any Candidate and for Your decision to use or not to use the Candidate Data as part of such process or any adjustments advised to Arctic Shores for the purposes of App set-up.
13. INDEMNITY
13.1. Subject to You complying with clause 13.3, Arctic Shores shall indemnify You against all Losses awarded against You as a result of or in connection with any claim made by a third party (“Client Third Party Claim”) that the provision of the Services (including, for the avoidance of doubt, the App) or receipt or use thereof by You infringes the Intellectual Property Rights of a third party.
13.2. Clause 13.1 shall not apply where the Client Third Party Claim in question is attributable to:
13.2.1. any use of the Services or the Service Data otherwise than strictly in accordance with the provisions of this Agreement;
13.2.2. any use of the Candidate Data by You after its delivery to the Client System or it being made available on the Platform;
13.2.3. any use of the Candidate Data by You which is not in accordance with the permissions and consents given by the Candidate;
13.2.4. any Client Materials or Client Branding; or
13.2.5. the use of the Client System or the use of Candidate Data on the Client System in conjunction with the Services.
13.3. If any Client Third Party Claim is made, or there is any notification of an intention by a third party to make a Client Third Party Claim, You shall:
13.3.1. give written notice of the Client Third Party Claim to Arctic Shores as soon as reasonably practicable;
13.3.2. not make any admission of liability in relation to the Client Third Party Claim without the prior written consent of Arctic Shores;
13.3.3. at the request and expense of Arctic Shores, allow Arctic Shores to conduct Your defence of the Client Third Party Claim including settlement; and
13.3.4. at the expense of Arctic Shores, co-operate and assist to a reasonable extent with Arctic Shores’ defence of the Client Third Party Claim.
13.4. Subject to Arctic Shores complying with clause 13.5, You shall indemnify Arctic Shores against all Losses incurred or suffered, however arising, by Arctic Shores as a result of or in connection with any claim made by a third party (“Arctic Shores Third Party Claim”) for infringement of Intellectual Property Rights or otherwise, where such an Arctic Shores Third Party Claim arises due to Client’s use of the Services in breach of this Agreement.
13.5. Clause 13.4 is subject to the following:
13.5.1. If any Arctic Shores Third Party Claim is made, or there is any notification of an intention by a third party to make an Arctic Shores Third Party Claim, Arctic Shores shall:
13.5.1.1. given written notice of the Arctic Shores Third Party Claim to You as soon as reasonably practicable;
13.5.1.2. not make any admission of liability in relation to the Arctic Shores Third Party Claim without Your prior written consent;
13.5.1.3. at Your request and expense, allow You to conduct Arctic Shores defence of the Arctic Shores Third Party Claim including settlement; and
13.5.1.4. at Your expense, co-operate and assist to a reasonable extent with Your defence of the Arctic Shores Third Party Claim.
13.6. You shall indemnify Arctic Shores against all Losses incurred or suffered, however arising, by Arctic Shores as a result of or in connection with:
13.6.1. any claim made by any Candidate against Arctic Shores that arises as a result of any of Your acts or omissions (including, but not limited to, any decision taken by You not to employ or hire any Candidate) in connection with any Candidates’ use of the App, any Assessment Data, or any Assessment Result; and
13.6.2. any act or omission of any Candidate in relation to any Candidate’s use of the App other than in accordance with the Candidate Terms of Use.
14. THIRD PARTY PROVIDERS
14.1. You acknowledge that the Services may enable or assist You to access the website content of, correspond with, and purchase products and services from, third parties via third-party websites and that You do so solely at Your own risk. Arctic Shores makes no representation, warranty or commitment and shall have no liability or obligation whatsoever in relation to the content or use of, or correspondence with, any such third-party website, or any transactions completed, and any contract entered into by You, with any such third party. Any contract entered into and any transaction completed via any third-party website is between You and the relevant third party, and not Arctic Shores. Arctic Shores recommends that You refer to the third party’s website terms and conditions and privacy notice prior to using the relevant third-party website. Arctic Shores does not endorse or approve any third-party website nor the content of any of the third-party website made available via the Services.
15. FORCE MAJEURE
15.1. If a party (an “Affected Party”) is prevented, hindered or delayed in or from performing any of its obligations under this Agreement by a Force Majeure Event, the Affected Party shall not be in breach of contract or otherwise liable for any such failure or delay in the performance of such obligations. The time for performance of such obligations shall be extended accordingly.
15.2. A “Force Majeure Event” means any event beyond a party’s reasonable control including strikes, lock-outs or other industrial disputes (whether involving its own workforce or a third party’s), failure or interruption of energy sources, other utility service or transport network, acts of God, war, threat of or preparation for war, armed conflict, terrorism, riot, civil commotion, interference by civil or military authorities, sanctions, embargo, export or import restriction, quota or prohibition, breaking off of diplomatic relations, national or international calamity, malicious damage, breakdown of plant or machinery, nuclear, chemical or biological contamination, sonic boom, explosion, collapse of building structures, fire, flood, drought, storm, earthquake, volcanic eruption, loss at sea, epidemic, pandemic or similar events, outbreak of disease, including any measures taken, imposed or recommended by a competent authority in relation to the same, natural disasters or extreme adverse weather conditions, cyber or denial of service attacks, or default of suppliers or subcontractors.
15.3. If the period of delay or non-performance due to a Force Majeure Event continues for one month or more, the party not affected may terminate this Agreement by giving five Business Days’ written notice to the Affected Party.
16. NOTICES
16.1. Any notice given to a party under or in connection with this Agreement shall be in writing and shall be sent by email to:
16.1.1. Arctic Shores: accounts@arcticshores.com
16.1.2. You: Your email address used to sign the Order Form or the email address used to create the account on the Platform.
16.2. Any notice or communication shall be deemed to have been received at 09:00 on the next Business Day after transmission.
16.3. 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.
17. GENERAL
17.1. Each party agrees 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 and this Agreement constitutes the entire agreement between the Parties pertaining to the subject matter contained herein and supersedes all prior and contemporaneous oral or written agreements, representations, understandings and the like between the Parties, save in the case of any made fraudulently.
17.2. Subject to clause 17.3, this Agreement may only be modified, amended, altered or supplemented, in whole or in part, in writing signed by duly authorised representatives of both Parties.
17.3. Arctic Shores reserves the right to make changes to the Agreement as it requires from time to time provided that:
17.3.1 You are notified of such changes no later than thirty (30) Business Days before the change is to be effected; and
17.3.2 if such change has a material adverse effect then You shall have the right upon written notice to Arctic Shores to terminate the Agreement without liability within ten (10) Business Days of being notified of such change; or
17.3.3 if such change does have a material adverse effect and is not required by Applicable Law You shall have the right upon written notice to Arctic Shores to request that the Agreement is fulfilled in accordance with the then prevailing terms for the remainder of the Subscription Period at which point it shall automatically terminate; and
17.3.4 if You do not exercise any of Your rights in accordance with clause(s) 17.3.2 and/or 17.3.3 within the specified time periods then the change shall take effect.
17.4. If any provision of this Agreement is found by any competent authority to be void, invalid or unenforceable, such provision shall be deemed to be deleted from this Agreement and the remaining provisions of this Agreement shall continue in full force and effect.
17.5 In the event of any conflict between any of the provisions of this Agreement and the Candidate Terms of Use, the provisions of this Agreement shall prevail.
17.6. The rights of a party shall not be prejudiced or restricted by any indulgence or forbearance extended to any other party. A waiver to pursue any breach of contract by a party shall not operate as a waiver of the respective right or as a waiver to claim any subsequent breach. Any provision of this Agreement may be waived only by a written statement of the waiving party.
17.7. A person who is not a party to this Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any terms of this Agreement.
17.8. Arctic Shores may assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner (“Assign”) with any or all of its rights or obligations under this Agreement without Your consent.
17.9. You shall not assign, transfer, mortgage, charge, declare a trust over, subcontract, delegate or deal in any other manner with any or all of Your rights or obligations under this Agreement without the Arctic Shores’ prior written consent.
17.10. Each party shall promptly at the other party’s request and expense execute and deliver such documents and perform such acts as may be reasonably required for the purpose of giving full effect to this Agreement and shall use all reasonable endeavours to procure that any necessary third party shall promptly do the same
17.11. This Agreement shall be governed by, interpreted and construed in accordance with English law. The parties irrevocably agree that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter or formation (including non-contractual disputes or claims).
18. DISPUTE RESOLUTION
18.1. If a dispute arises out of or in connection with this Agreement or the performance, validity or enforceability of it (a “Dispute“) then the parties shall follow the procedure set out in this clause 18:
18.1.1. either party shall give to the other written notice of the Dispute, setting out its nature and full particulars (a “Dispute Notice“), together with relevant supporting documents. On service of the Dispute Notice, a Director of each of the parties shall attempt in good faith to resolve the Dispute;
18.1.2. if a Director of each of the parties are unable to resolve the Dispute within 30 days of it being referred to them, the parties may agree to enter into mediation in good faith to settle such a dispute in accordance with the Centre for Effective Dispute Resolution (“CEDR“) Model Mediation Procedure. Unless otherwise agreed between the parties, the mediator shall be nominated by CEDR. To initiate the mediation, a party must serve notice in writing (an “ADR notice“) to the other party to the Dispute, requesting a mediation. A copy of the ADR notice should be sent to CEDR. The mediation will start not later than 30 days after the date of the ADR notice.
18.2. If the Dispute is not resolved within 60 days after service of the ADR notice, or either party fails to participate or to continue to participate in the mediation before the expiration of the said period of 60 days, the Dispute shall be finally resolved by the courts of England in accordance with clause 17.11.
18.3. Neither party may commence any court proceedings in relation to any Dispute arising out of this Agreement until it has attempted to settle the dispute in accordance with the provisions of this clause 18 and either the mediation has terminated or the other party has failed to participate in the mediation, provided that the right to issue proceedings is not prejudiced by a delay.
19. INTERPRETATION
19.1. The definitions set out in Schedule 1 and rules of interpretation set out in this clause 19 apply in this Agreement.
19.2. Clause, schedule and paragraph headings shall not affect the interpretation of this Agreement.
19.3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
19.4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
19.5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
19.6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
19.7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this Agreement.
19.8. 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.
19.9. A reference to writing or written includes e-mail.
19.10. 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.
19.11. Any words following the terms “including”, “include”, “in particular”, “for example” or any similar expression shall be construed as illustrative and shall not limit the generality of the related general word.
SCHEDULE 1: DEFINITIONS
In this Agreement, unless the context otherwise requires, the following words and phrases shall have the following meanings:
“Account” means Your registered account area on the Platform for use by Authorised Users;
“Acknowledgement” has the meaning given to it in clause 3.9.2;
“Agreement” the agreement between Arctic Shores and You for the supply of Services which incorporates this SAAS Agreement and the Order Form;
“App” means the game-based assessment software application developed and owned by Arctic Shores, which is made available for use by Candidates via a mobile application or through a hosted internet service;
“Applicable Law” means in England, any and all applicable laws, regulations and industry standards or guidance (including any applicable British Standard) and any applicable and binding judgment of a relevant court of law;
“Assessment” has the meaning given to it in clause 1.5;
“Assessment Data” means the data collected by Arctic Shores from an individual Candidate’s use of the App and which is used to generate the Assessment Result;
“Assessment Result” means the score generated from the Assessment (and each of the personality, cognitive function and aptitude scores from any Candidate’s use of the App is a separate Assessment Result);
“Assessment Template”means each of the off-the-shelf assessment frameworks in respect of the working world’s most common roles, developed by our business psychologists from time to time which determine what success criteria the relevant assessment will measure and how to weigh particular traits;
“Authorised Users” means Your employees, agents and sub-contractors (including Third Party Contractors) who are authorised by You to use the Platform for the Permitted Purpose, as further described in clause 1.1;
“Business Day” means a day other than a Saturday, Sunday or public holiday in England;
“Candidate” means any Permitted Person who is invited by You to take a game based psychometric test using the App;
“Candidate Data” means, in relation to a specific Candidate, the Assessment data of such Candidate;
“Client Branding” means any corporate, business or trading name, logo, colour scheme or other material (including any associated trademarks) reflecting Your business identity and generally used in Your business materials, which are specified by You;
“Candidate Terms of Use” means the terms of use of the App which Candidates have to accept before they are able to use it, as amended from time to time by Arctic Shores and can be accessed at https://www.arcticshores.com/tcs/ (or any other location or address notified to You in writing from time to time which shall include any notice placed on Platform);
“Client Materials” means any materials or data supplied by You to Arctic Shores for the purposes of this Agreement (including, but not limited to, any materials which incorporate Client Branding);
“Client System” means Your information technology system from which the Candidate Data is to be received in accordance with this Agreement;
“Commencement Date” means the date upon which Arctic Shores receive a signed Order Form from You;
“Content” means information, comments, contributions, data, text, photographs, software, scripts, graphics, and interactive features generated, provided, or otherwise made accessible by Arctic Shores on or through the Service (other than the Candidate Data);
“Custom Assessment Template” means any custom framework assessments created by You from time to time which determines the success criteria and weighting of particular traits;
“Documentation” means the documentation made available to You by Arctic Shores online at https://knowledgebase.arcticshores.com or such other web address notified by Arctic Shores to You from time to time which sets out a description of the Services and the user instructions for the Services;
Insolvency Event” means any of the following in relation to a party (i) that party suspends or threatens to suspend payment of its debts or is unable to pay its debts as they fall due (ii) that party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts (iii) that party makes a proposal for or enters into any compromise or arrangement with any of its creditors (save for a scheme of solvent amalgamation or reconstruction (iv) that party has an administrator appointed or an application is made to court for such appointment (v) a petition is filed or notice is given, or an order is made for or in connection with the winding up of that party (vi) a person becomes entitled to appoint a receiver, or a receiver is appointed, over all or any of the assets of that party (vii) a person has become entitled to appoint or has appointed an administrative receiver over the assets of that party; or (viii) any analogous event occurs in relation to that party in any other jurisdiction;
“Intellectual Property Rights”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 trade secrets) 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;
“Live Assessment” means an active Assessment that is currently being used by You for the role You are hiring for from time to time.
“Losses” means all damages, losses, liabilities, claims, actions, costs, expenses (including reasonable fees and disbursements for legal or professional services), proceedings, judgments, consensual settlements, penalties, fines, demands, interest and charges whether arising under statute, contract or at common law;
“Order Form” means a document signed electronically by You and Arctic Shores prior to commencement of the Services;
“Permitted Persons” means Your employees or prospective employees or, where You are a Recruitment Business, the employees or prospective employees of the customer or client for whom You are providing recruitment services and where that customer or client has requested You to undertake psychometric testing as part of those services;
“Permitted Purpose” means for the purposes of psychometric assessment in the recruitment and career development of Permitted Persons;
“Platform means either of the two self-service management portals made available at https://datahub.arcticshores.com or https://www.una-arcticshores.com;
“Privacy Policy” means the privacy policy in force from time to time in relation to the Service as made available at https://www.arcticshores.com/privacy-policy;
“Recruitment Business” means an employment agency or employment business;
“SAAS Agreement” the terms and conditions set out in this document as amended from time to time in accordance with clause 17.2;
“Services” means: the Technical Support Services; and the licence to use the App on the terms of this Agreement.
“Service Terms” means any terms and conditions for configuration, integration, and training services entered into by You and Arctic Shores on or around the date of this Agreement in relation to the Platform made available at https://datahub.arcticshores.com or https://www.una-arcticshores.com
“Standard Data” means anonymised and aggregated data relating to users of the App (which may include, without limitation, the Candidates) which Arctic Shores makes available from time to time, but does not include Candidate Data (save to the extent that such Candidate Data is anonymised and aggregated with other App user data within such reports and information);
“Subscription Fee” means the subscription fee set out on the Order Form in respect of the “Access, “Pro”, or “Enterprise” subscription package selected by You, unless otherwise agreed in writing between the parties.
“Subscription Period” has the meaning given to it in clause 10.1;
“Technical Support Services” means the services described in clauses 3.5 to 3.10 (inclusive);
“Term” means the period from the Commencement Date until this Agreement expires or is terminated for any reason;
“Third Party Contractor” means any third party appointed by You to provide or support the Client System;
“Virus” means any thing or device (including any software, code, file or program) 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 program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program 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.