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WCN Recruitment Application Service Agreement

01 Aug 2017

This RECRUITMENT APPLICATION SERVICE AGREEMENT (“Agreement”) is made on the Effective Data on the Order Form with World Careers Network, plc. and governs your acquisition and use of our services.

IT IS AGREED AS FOLLOWS:

1.    Definitions

 “Agency User” means a recruitment agent of the Client granted limited access to the System’s functionality for the purpose of providing recruitment services to the Client as described in the Statement of Work;

"Business Day" means a day other than Saturday, Sunday or public holiday in England and Wales;

"Business Hours" means the hours between 9:00AM and 6:00PM (in London) on each Business Day;

 “Candidate” means any person who makes use of the functionality of the System that is publicly available via the Internet;

“Change Request” means any change to the System which does not constitute Maintenance, is not included in Schedule 3 Statement of Work, and/or is requested by the Client;

“Client Data” means the Database and all data relating to Client Users that is held by the System in accordance with the Statement of Work;

"Client Users" means Registered Users and Agency Users;

“Confidential Information” means all information of a confidential nature which relates to any party including without limitation all information which relates to the business, financial affairs, products, developments, trade secrets, know-how, personnel, customers and suppliers of any party or information which may reasonably be regarded as the confidential information of the party disclosing it. that is directly or indirectly disclosed by or on behalf of a party to the other party; 

“Consultancy Services” means any services provided by WCN to the Client pursuant to a statement of work agreed upon by the parties and shall include services provided in connection with Implementation Services, a Change Request, a Module or Test requested by Client after Acceptance;

"Database" means the database of Candidate data compiled from their use of the System and able to be downloaded by the Client from the System;

“Delivery Date” means a date from which Services are to be provided, as set out in a purchase order;

 “Effective Date” means the date entered in the first line of this Agreement:

"Fees" means the fees payable by the Client to WCN, as described in the Order Form; 

 “Hosting Services” means the System hosting services described in Schedule 2;

 “Intellectual Property Rights" means all intellectual property rights in any part of the world and shall include but not be limited to: patents (including supplementary protection certificates), utility models, rights in inventions, registered and unregistered trade and service marks, rights in business and trade names and get-up, rights in domain names, registered designs, unregistered rights in designs, semiconductor and topography rights, copyrights and neighboring rights, database rights, rights in know-how and in each case rights of a similar or corresponding character and all applications and rights to apply for the protection of any of the foregoing;

“Implementation Services” means the development and configuration services described in a Statement of Work attached hereto as Schedule 3;

“Line Manager User” means a Registered User who is not a Recruiter User;

 “Maintenance” means any error corrections, updates and upgrades that WCN may provide or perform with respect to the System as described in Schedule 2;

“Module” means additional functional components of the System offered by WCN as standard and listed, but not included, in the existing Statement of Work;

“Professional Services” means any service provided by WCN to the Client pursuant to a Statement of Work or Change Request agreed upon by the parties;

“Project” means any campaign being run by a Client for which WCN has accepted a purchase order to provide Services; 

"Project Manager” means, in relation to either party, the individual appointed by that party with authority to bind the party in relation to all matters relating to this Agreement;

“Purpose” means the Client’s use of the System to manage its recruitment requirements;

 “Recruiter User” means a Registered User who is part of the Client’s internal recruitment department;  

 “Registered User” means an employee or sub-contractor of the Client granted access to the System’s functionality as described in the Statement of Work;

“Services” means the Professional Services, the Hosting Services, Maintenance and/or Support as required by the context;

“Service Levels” means those levels of service described in Schedule 2 

 “Statement of Work” means the document agreed between the parties for the Professional Services delivered by WCN;

“Subscription” means the license granted for use of the System;

“Support” means support services for Client Users and Candidates as described in Schedule 2;

“Supported User” means a Registered User with access to Support;

 “System” means the application service to be provided by WCN to the Client under this Agreement in accordance with the Statement of Work;

"User Acceptance Testing Date" means the date on which WCN makes the System available to the Client or such other date that WCN makes the System available to the Client after installlllation of a Module, integration of a Change Request or correction of a Defect; and

"Web Site" means the web site of the Client located at the URL http:/www.customername.com at the date of this Agreement.

2.    Hosting Services, Maintenance and Support

A.    WCN shall provide the Hosting Services, Maintenance, and Support and use its reasonable endeavors to meet the Service Levels with effect from the set up and delivery to the Client of usernames and passwords to log in to the System for the purposes of System familiarization.

B.    In relation to the System:

  1. WCN grants the Client on and subject to the terms conditions of this Agreement a non-exclusive, non-transferable license to allow Client Users to access the System through the Hosting Services to use the System solely for the Purpose; 
  2. the Client shall not store, distribute or transmit any material through the Hosting Services that is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, color, religious belief, sexual orientation, disability, or otherwise illegal; 
  3. the rights provided under Section 2 I  are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client; and
  4. the Client shall not attempt to duplicate, modify or distribute any portion of the System; attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form any of the System, except as may be allowed by any applicable law which is incapable of exclusion by Agreement between the parties; use the System to provide services to third parties; transfer, temporarily or permanently, any of its rights under this Agreement; or attempt to obtain, or assist others in obtaining, access to the System. 

3.    WCN's obligations 

A.    WCN undertakes that:

  1. the Services will be performed with the reasonable skill and care of a competent provider of application services, in accordance with best industry practice and comply with all applicable laws and regulations;  and
  2. the System will perform substantially in accordance with the Statement of Work.


B.    The undertakings in Section 3.A shall not apply to the extent of any non-conformance which is caused by use of the System contrary to WCN's instructions or modification or alteration of the System by any party other than WCN or its agents. 

C.    If the System does not conform substantially to the Statement of Work, WCN will, at its expense, use all reasonable commercial efforts to correct any such non-conformance promptly, or provide the Client with an alternative means of accomplishing the desired performance, such correction or substitution constituting the Client’s sole and exclusive remedy for any breach of the undertaking set out in Section 3.A.2. 

D.    Notwithstanding the foregoing, WCN does not warrant that the Client’s use of the System and the Services will be uninterrupted or error-free and the Client acknowledges that any tests, questionnaires, or decision rules that are configured within the System are intended to provide a guide only to the Client of the suitability and aptitude of Candidates and accordingly, the Client shall be solely responsible for all decisions taken or not taken in respect of Candidates.

4.    Client’s obligations

A.    The Client shall: 

  1. provide WCN with all necessary co-operation in relation to this Agreement and all necessary access to such information as may be required by WCN in order to render the Services, including but not limited to Client Data, Statement of Work information, security access information and software interfaces to the Web Site; 
  2. comply with all applicable laws and regulations with respect to its activities under this Agreement and that all activities must be carried out and administered in compliance with all relevant laws, procedures or guidelines in force from time to time in the country in which the activities are administered;
  3. carry out all Client responsibilities set out in this Agreement or in any of the schedules in a timely and efficient manner. 
  4. If the Client fails to comply with its obligations under Section 4.A and WCN is required to repeat Services or perform additional Services as a result of such failure, WCN shall be entitled to charge the Client Professional Services Fees for number of additional days Services required at the rates prescribed in the Order Form.

5. Client Data and Security

A.    WCN shall:

  1. for the duration of this Agreement, take whatever reasonable measures necessary to ensure System security meets the requirements laid out in Schedule 2; 
  2. at all reasonable times, upon reasonable prior notice and at the Client’s reasonable expense, allow the Client’s representatives access in order to test System security and conduct an inspection and review of WCN’s security procedures;
  3. follow the procedures for Client Data as described in Schedule 2; and  
  4. not be responsible for any loss, destruction, alteration or disclosure of Client Data caused by any third party (except those third parties sub-contracted by WCN to perform services related to Client Data maintenance and back-up).

B.    The Client shall:

  1. nominate Client Users who, will have access to the System and, without limiting the Client’s liability for any breaches of this Agreement, the Client shall be liable for their use, or misuse, of the System; 
  2. keep, and shall ensure Client Users keep confidential any user name and password assigned to them and shall be responsible for protecting and securing said user names and passwords and preventing, so far as possible, any unauthorized use of the System;
  3. notify WCN of any actual or anticipated unauthorized or improper access to or use of the System, including but not limited to a Client User being or becoming affiliated with a competitor of WCN, as soon as the Client becomes aware of this.
  4. in the event of any loss or damage to Client Data, the Client’s sole and exclusive remedy shall be for WCN to use reasonable commercial efforts to restore the lost or damaged Client Data from the latest back-up of such Client Data maintained by WCN in accordance with the procedure described in Schedule 2. 
  5. WCN reserves the right to suspend access to the System for any Client User if in its sole opinion the continued use of the System could result in a disclosure of WCN’s Confidential Information.

6.    Data Protection

A.     Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.

B.     Client shall ensure that the personal data, which it supplies or discloses to WCN, has been obtained fairly and lawfully and that it will obtain all necessary approvals from persons whose data is being processed and registrations with authorities to permit WCN to transfer personal data to third parties pursuant to its obligations under this Agreement. 

C.    WCN confirms that it (i) merely acts as a data processor; (ii) will only process data in accordance with the instructions of the data controller; and (iii) has taken, as well as its subcontractors, licensors and hosts, sufficient technical and organizational measures to safeguard personal data. 
D.     If a third party alleges infringment of its data protection rights, WCN shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.

7.    Invoicing & Payment

A.    The Client shall, in consideration for WCN performing its obligations under this Agreement, pay the Fees to WCN in accordance with the provisions of the Order Form. 

B.    Fees for payment of the Services are payable annually in advance and shall fall due on the first day of each calendar month following the Effective Date, save in relation to Services arising from a Change Request, which shall be invoiced and be payable monthly.  

C.    The Client shall ensure that payment of each such invoice is made within thirty days from the date of receipt of such invoice. 

D.    Should the Client fail to make payment of any properly invoiced amount within such thirty day period, WCN may suspend the Client Users’ access to the System and charge interest on all sums overdue at the rate of 2% above the National Westminster Bank base rate from time to time.

E.    The Client shall pay reasonable travel and accommodation expenses for WCN staff with prior Client approval. 

8.    Intellectual Property Rights

A.    All Intellectual Property Rights belonging to a party prior to the signing of this Agreement shall remain vested in that party.

B.    All Intellectual Property Rights in the System, Modules and Change Requests and work products shall remain the property of WCN and/or its licensors. 

C.    Subject to Section 8.D, WCN shall indemnify and hold Client harmless from liability arising from or incurred by reason of any infringement or alleged infringement (including but not limited to the defense of such alleged infringement) of any Intellectual Property Right of a third party suffered or incurred as a result of or in connection with the development or use of the System.

D.    The Client shall not be entitled to rely on the indemnity set out in Section 8.C to the extent that the liability that it has incurred or suffered is as a direct result of the Client using the System otherwise than in accordance with this Agreement.

E.    Subject to Section 8.F, the Client shall indemnify and keep indemnified WCN against all liability arising from or incurred by reason of any claim that any material provided to WCN by the Client for inclusion in the System or otherwise under this Agreement infringe or is alleged to infringe any Intellectual Property Right of a third party (including but not limited to the defense of such alleged infringement).

F.    WCN shall not be entitled to rely on the indemnity set out in Section 8.E to the extent that the Losses that it has incurred or suffered are as a direct result of WCN using any material otherwise than in accordance with this Agreement.

G.    Each party shall, as soon as reasonably practicable on becoming aware of the fact, promptly notify the other party of any claim or demands made or action brought against it by a third party for infringement or alleged infringement of any Intellectual Property Right which may affect the System or the receipt of the Services.

H.    The indemnity set out in terms of this Section 8 shall not be subject to any limit of liability in terms of Section 9.

9.    Limitation of Liability

A.    WCN and its sub-contractors shall not be liable for the accuracy and integrity of data entered into the System by Client Users or Candidates nor for misuse of the System by Client Users or Candidates.

B.    The Client indemnifies WCN against any claim which may be made against WCN and its sub-contractors by any third party to whom the Client may provide or procure either the benefit of the System or any materials supplied by WCN in breach of this Agreement.  


C.    Neither party shall be liable to other party, whether for negligence, breach of contract, misrepresentation or otherwise, for indirect or consequential damage suffered by other party, including, without limitation, loss of profit, goodwill, business opportunity or anticipated saving.

D.    Subject to Section 9.E, the entire liability of WCN under or in connection with this Agreement whether for negligence, breach of contract, misrepresentation or otherwise, shall be limited, in respect of each event or series of connected events, to the value of the Fees paid by the Client to WCN under this Agreement during the twelve months preceding the date the event giving rise to such liability arose and provided that such liability shall only arise where WCN shall have failed to take reasonable precautions and adopt security measures recognized by industry standard practices to protect the security of the System.

E.    Nothing in this Agreement shall operate to exclude or restrict either party’s liability for death or personal injury resulting from its negligence or the negligence of its employees, or for fraud. 

F.    The Client acknowledges and accepts that the System is intended to provide a guide only to the Client of the suitability and aptitude of a Candidate and accordingly, the Client will be solely responsible for all decisions taken or not taken in respect of a Candidate.

10.    Warranties

A.    WCN warrants and undertakes that:

  1. it has the right, power and authority, and has taken all action necessary, to execute, deliver and exercise its rights, and perform its obligations, under this Agreement;
  2. it has sufficient experience to undertake and fulfillll its obligations under this Agreement;
  3. it is the owner of, or has the authority to license use of, the System and that no third parties have any rights therein which might cause WCN to be unable to provide the System as contemplated in this Agreement;
  4. it will use reasonable efforts to ensure the System does not contain any computer viruses, worms, software bombs or similar items; and
  5. it shall perform its obligations under this Agreement utilizing fully trained and qualified personnel in a professional and workmanlike manner and in accordance with industry standards.

11.    Confidentiality and Announcements

A.    Each party may be given access to Confidential Information from the other party in order to perform its obligations under this Agreement.  A party's Confidential Information shall not be deemed to include information that: 

B.    is or becomes publicly known other than through any act or omission of the receiving party; or

C.    was in the other party's lawful possession before the disclosure; or 

D.    is lawfully disclosed to the receiving party by a third party without restriction on disclosure; or 

E.    is independently developed by the receiving party, which independent development can be shown by written evidence; or 

F.    is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.

G.    Each party shall hold the other's Confidential Information in confidence and, unless required by law, not make the other's Confidential Information available to any third party, or use the other's Confidential Information for any purpose other than the implementation of this Agreement.  

H.    Each party shall take all reasonable steps to ensure that the other's Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this Agreement.  

I.    Neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.

J.    Neither party may make or send a public announcement, communication or circular concerning this Agreement unless it has first obtained the other party's written consent (not to be unreasonably withheld or delayed).

12.    Term and Termination

A.    This Agreement will commence on the Effective Date and will endure indefinitely thereafter until terminated in accordance with the provisions of this Section 12.

B.    Either party shall be entitled to terminate this Agreement on an anniversary of the Effective Date by giving at least ninety days' prior written notice to the other party, provided that no such notice may be given until 36 months after the Effective Date.  

C.    WCN may terminate this Agreement immediately by giving written notice to the Client if the Client undergoes, in WCN’s opinion, a material change of ownership resulting in a competitor of WCN obtaining effective control of the Client.  The Client shall immediately prior to such change of ownership taking place, inform WCN of the fact in writing.

D.    Either party shall be entitled to terminate this Agreement immediately by written notice to the other party if:

  1. the other party commits any breach of any material provision of this Agreement and fails (in the case of any such breach which is capable of being remedied) to remedy the same within 15 Business Days from receipt of a written notice specifying the nature of such breach and requiring the other party to remedy the same;
  2. enters into compulsory or voluntary bankruptcy, insolvency or liquidation; or has an administrator, receiver, manager or similar officiala ppointed over any of the property or the assets of the other party;
  3. the other party ceases or threatens to cease to carry on business; or
  4. the other party suffers any similar or analogous action to those set out in Sections 12.D.1to 12.D.3 above.

13.    Consequences of Termination

A.    If this Agreement is terminated for any reason whatsoever, the Client shall forthwith stop using the System.

B.    Each of the parties shall, to the extent requested by the other party, destroy or delete all the other's Confidential Information under its control or in its possession, alternatively, return the same to the other party, and shall certify to the other party that it has done so as soon as may be possible in the circumstances.

C.    Termination of this Agreement for any reason will not affect any rights and/or liabilities of either party accrued prior to such termination.

D.    The provisions of Sections 8, 9, 11, 13, 15 and 17.A will not be affected by any termination of this Agreement.

14.    Assignment and Sub-contracting

A.    WCN shall be entitled to sub-contract any of its obligations pursuant to this Agreement to third parties.

B.    WCN shall, notwithstanding the appointment of any sub-contractors, remain liable to the Client for the proper performance of all WCN's obligations under this Agreement.

C.    Subject to Section 14.A, neither party shall be entitled to assign, transfer or otherwise dispose of any of its rights or obligations under this Agreement without the prior written consent of and subject to any conditions prescribed by the other party.

15.    Governing Law and Jurisdiction

This Agreement and all matters arising from or connected with it are governed by the laws of New York without regard to choice of law principles and the parties submit to the exclusive jurisdiction of the federal courts in the Eastern District of New York.

16.    Third party Rights

A person who is not a party to this Agreement has no right under the Contracts (Rights of Third parties) Act 1999 to enforce any term of this Agreement but this shall not affect any right or remedy of a third party which exists or is available apart from that Act.

17.    Notices

A.    Any notice or other information required or authorized by this Agreement to be given by either party to the other must be in writing and sent by registered post (recorded delivery) or email (followed by a hard copy sent by registered post)to the other party at the land or email address specified in this Agreement or other address/email address provided in writing to the other party.

B.    Notices shall be deemed given by recorded delivery post, two Business Days after the date of posting and in the case of notice given by email, at the time stated in a successful delivery report on the first available Business: WCN’s notices should be provided to Charles Hipps, Chief Executive Officer  Charles.Hipps@wcn.co.uk or 5-7 Bridgeworks, The Crescent, London, SW19 8DR, UK  The Client’s notices should be provided to the email and title provided on the Order Form

18.    General

A.    This Agreement constitutes the entire Agreement between the parties relating to the subject matter of this Agreement.

B.    A variation of this Agreement is valid only if it is in writing and signed by or on behalf of each party.

C.    A failure to exercise or delay in exercising a right or remedy provided by this Agreement or by law does not constitute a waiver of the right or remedy or a waiver of other rights or remedies.  No single or partial exercise of a right or remedy provided by this Agreement or by law prevents further exercise of the right or remedy or the exercise of another right or remedy. 

D.    In the event that any provision of this Agreement is held to be invalid or unenforceable, such provision will be deemed to have been severed from the Agreement, while the remainder of the Agreement will remain in full force and effect.

E.    Except where this Agreement provides otherwise, the rights and remedies contained in this Agreement are cumulative and not exclusive of rights or remedies provided by law.

No provision of this Agreement creates a partnership between the parties or makes a party the agent of the other party for any purpose.  Neither party has any authority or power to bind, to contract in the name of, or to create a liability for the other party in any way or for any purpose Executed by the parties as an Agreement