1. Definitions and interpretation
1.1 In our agreements;
1.1.1 “Confidential information” means any information relating to a business, including but not limited to products, affairs and finances and trade secrets including technical data and know-how relating to the business or any business contacts and any affiliated companies or subsidiaries;
1.1.2 “Intellectual Property Rights” means any and all patents, trademarks, service marks, copyright, moral rights, rights in design, know-how, confidential information and all or any other intellectual or industrial property rights whether or not registered or capable of registration and whether now or in the future subsisting in the United Kingdom or any other part of the world together with all or any goodwill and accrued rights of action;
1.1.3 “Personal Data” means data as defined in Section 3(2) of the Data Protection Act 2018.
1.1.4 “The Agreement” means these terms and conditions together with any additional terms in respect of a particular service and any document or documents referred to in any Contract Specification.
1.1.5 “Contract Specification” means a document setting out the necessary details about the specific service requirements.
1.2.1 Singular words include the plural and vice versa;
1.2.2 reference to any legislation, statute, enactment, order, regulation or other similar instrument shall be construed as a reference to it as amended or re-enacted;
1.2.3 reference to any person includes natural persons and partnerships, firms and other incorporated bodies and all other legal persons of whatever kind and however constituted and their successors and permitted assignees or transferees;
1.2.4 the words “include”, “includes” and “including” are to be read as if they were immediately followed by the words “without limitation”;
1.2.5 unless the context otherwise requires, references to ‘HR Wise’, ‘the seller’, ‘we’, ‘our’ or ‘us’ refers to HR Wise Owl Ltd trading as HR Wise a company limited in England and Wales number 13514954, registered office, The Old Surgery, 19 Mengham Lane, Hayling Island, Hampshire, PO11 9JT;
1.2.6 unless the context otherwise requires, references to ‘the client’, ‘you’ or ‘your’ refer to the client or potential client of HR Wise.
2.1 These Terms and Conditions shall apply to all and any contracts for the supply of services by the seller to the client and to the exclusion of all other terms and conditions, including any terms and conditions the client may purport to apply under any purchase order, confirmation of order or similar documents.
3. Payment Terms
3.1 Where Services are paid monthly this will be in advance via direct debit. The payment will be taken on the first of each calendar month. If a contract commences part way through a calendar month, a pro-rata charge will be applied to the first monthly payment on the first of the following calendar month.
3.2 HR Wise guarantees to commit to monthly payments at the rate agreed at the outset of the 12-month contract. However, in the event that a client’s needs appear to exceed that envisaged in the design of the product and service, HR Wise reserves the right to engage in a payment review discussion with the client at three months and six months respectively.
3.3 HR Wise online services include 3 hours of email support. Additional support including requests for non-email support, email support above the 3 hours limit and bespoke support will be invoiced at the prevailing support rate.
3.3 Any disbursement, reasonable general expenses and reasonable travelling expenses (including mileage at the HMRC rate, hotel and other out-of-pocket expenses) properly incurred in the performance of duties under an Agreement by HR Wise’s personnel may be invoiced.
3.4 Invoices will be provided for payment within seven days.
3.5 Please raise any invoicing disputes within seven days.
3.6 Late payments may attract statutory penalties, interest and debt recovery costs.
4.1 The client may terminate the Agreement with immediate effect, on written notice, if HR Wise:
4.1.1 commits a serious breach of the terms which it fails to remedy within thirty days of receipt of written notice from the client specifying the breach and requesting remedy;
4.1.2 persistently neglects, fails or refuses to perform the services to your reasonable satisfaction;
4.1.3 acts in any way materially contrary to the client’s interests whilst providing the services;
4.1.4 has a receiving order made against it or makes any arrangement with its creditors.
4.2 HR Wise may terminate the Agreement if the client:
4.2.1 fail to make any outstanding payment within fifteen days of receiving written notice from HR Wise that the payment is late (on written notice to the client following the end of the fifteen-day period);
4.2.2 commit a serious breach of the terms which the client fails to remedy within thirty days of receipt of written notice from HR Wise specifying the breach and requesting remedy (on written notice at any time following the end of the thirty-day period);
4.2.3 is involved in any regulatory actions, civil or criminal proceedings or any other acts or omissions in respect of which may, in the sole opinion of HR Wise, be prejudicial to HR Wise or bring HR Wise into disrepute (immediately on notice);
4.2.4 become insolvent or make an assignment for the benefit of creditors (immediately on notice).
4.3 The client will be liable to HR Wise in respect of all fees and expenses and any outstanding balances must be settled in full on termination.
4.4 The termination of the Agreement for whatever reason will be without any compensation or damages to the client.
4.5 Termination does not remove the rights of either party to recover damages from the other.
5.1 At no time will HR Wise personnel hold themselves out as being an employee or legal representative of the client or sign any document on the client’s behalf.
5.2 The relationship is limited to the performance of the terms and conditions of the Agreement. Nothing in the Agreement shall be construed as to create a partnership or to authorise either party to act as a general agent for the other or to permit either party to bind the other except as set out in the Agreement, or to borrow money on behalf of the other or to use the credit of either party for any purpose.
6. Intellectual Property and Copyright
6.1 Any material supplied by HR Wise may be used for the clients legitimate business purposes and circulated within the client organisation provided that no trademark, copyright or other proprietary notices are removed. Material may not otherwise be copied, reproduced or redistributed. In particular, it must not be exploited for commercial gain, unless separately agreed in writing, or to cause loss (including loss of profit) to HR Wise.
6.2 The client is not entitled to describe the relationship with HR Wise in any terms without prior written consent from us as to the form of wording for each such use.
6.3 This term survives the termination of the Agreement for whatever reason.
7. Confidentiality and Information Security
7.1 The client agrees to give HR Wise access to certain confidential information relating to the affairs of the business solely for the purpose of fulfilment of the Agreement.
7.2 Where it is necessary for HR Wise to share information with third parties solely for the purpose of the fulfilment of the Agreement the client hereby gives the necessary specific permission and consent to share information to the extent that may be required for the performance of the services
7.3 Whilst the other party’s confidential information is in possession of either party it is agreed that appropriate and reasonable technical and organisational measures will be taken to protect it against accidental loss, unauthorised disclosure, destruction or damage.
7.4 All parties agree not to use, sell, market, or disclose confidential information to any third person, firm, corporation, or association for any purpose, without the others express written authorisation, other than to employees and advisors for the purpose of the conduct of discussions or the discharge of any duties under this Agreement.
7.5 Third-party disclosures will only be made if the third party agrees to be bound by the terms of this Agreement in writing. Each party agrees to be liable to the other for any loss or damage caused by any use made of confidential information by any person provided with copies or to whom it has been disclosed. This does not apply to;
7.5.1 any authorised use or disclosure; or
7.5.2 a disclosure required by law; or
7.5.3 any information which is already in (or comes into) the public domain otherwise than through unauthorised disclosure.
7.6 On termination of the Agreement and on receipt of a written request all parties agree to:
7.6.1 return, within one month, all hard copies of documents and all samples or other items from which confidential information can be acquired that, at the time of the receipt of the notice, are in their possession
7.6.2 securely delete, (and provide written confirmation within one month), all electronic copies of documents from which confidential information can be acquired that, at the time of the receipt of the notice, are in their control.
7.6.3 These obligations continue with respect to each item of the confidential information following the termination of the business relationship between the parties, and such obligations shall not terminate until such item shall cease to be secret and confidential and shall be in the public domain unless such has occurred as a result of wrongful conduct by either party or their advisers’ agents, servants, officers, or employees.
7.7 All parties consent to the holding and processing of data for legal, personnel, administrative and management purposes.
8. Assignment and Subletting of Contract
8.1 HR Wise utilises suitable personnel who will comply fully with the terms of the Agreement.
8.2 HR Wise may assign its obligations under this Agreement to a third party without the Client’s consent.
8.3 Nothing in the preceding sub-clause shall, however, prevent the Client from enforcing its rights under this Agreement against the Seller.
8.4 The Client may not assign any of its rights or obligations under this Agreement without the prior written consent of a senior executive of HR Wise and any such attempt is void.
9.1 Any warranties and conditions provided in this Agreement shall be exclusive.
9.2 All other warranties and conditions, whether express or implied, by operation of law or otherwise, are hereby excluded in relation to the performance of the services.
9.3 Please remember that compliance guidance is an interpretation of current relevant legislation; however, the Courts are the final arbiters in matters of legislative interpretation. Therefore, the services are provided on an ‘as is’ basis with no guarantee of success and reliance on information and materials supplied is entirely at the client’s own risk.
9.4 Any statements made about a course of action or foreseeable result is an expression of opinion only, based on information available at the time and is no guarantee of any particular outcome.
9.5 HR Wise excludes all liability in respect of any loss or damage resulting or arising from or in connection with the use of the services.
10.1 The client shall keep HR Wise indemnified in full against all direct, indirect and consequential liabilities (including, but not limited to, loss of profits, loss of business and loss of contracts), loss, damages, injury, costs and expenses (including legal and professional fees) awarded against or paid by us in connection with any claim made against us arising through the client’s breach of these terms.
10.2 The Client shall indemnify HR Wise in respect of any direct loss incurred by HR Wise in the performance of the services in consequence of any negligent act or omission committed by any person or organisation acting on behalf of the client.
10.3 HR Wise shall indemnify the client in respect of any direct loss incurred by the client in consequence of any negligent act or omission committed by any person or organisation acting on behalf of HR Wise in the normal course of the performance of the service.
10.4 Nothing in the Agreement excludes or limits HR Wise’s liability for:
10.4.1 death or personal injury resulting from negligence;
10.4.2 any damage or liability incurred by the client as a result of fraud or fraudulent misrepresentation by HR Wise; or
10.4.3 any liability which cannot be excluded by law.
11. Limitation of Liability
11.1 The liability of HR Wise to the client under this Agreement shall be limited to any direct loss suffered by the client as a result of the negligent performance of the services due to a lack of reasonable care and skill and only where the client notifies HR Wise of the negligent act or omission in question within seven days of the date when the client became, or should reasonably have been, aware of that act or omission.
11.2 HR Wise’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance of the Agreement shall be limited to the amount paid by you in the twelve months preceding the date to which any claim relates and will not include liability for loss of profits or data, business interruption or costs of procurement of substitute goods or services, or for any indirect, special or incidental or consequential damages however caused.
11.3 HR Wise shall not be liable for any loss caused by any act or omission of an operative of the seller where that operative was not acting in the normal course of performance of the services.
11.4 HR Wise shall not be liable for any loss or damage arising from the performance of services that amount to a variation of the services to be performed, agreed under this Agreement unless such variation has been agreed in compliance with this Agreement.
11.5 HR Wise shall not be liable for any consequential, special or indirect damages or loss suffered by the client, including loss of profits and liquidated damages.
12. Force Majeure
12.1 No party shall be entitled to damages from another party, or to terminate this Agreement where the other party acts in default or material breach of this Agreement where that default or breach was caused by conditions or events beyond its control including, but not limited to:
12.1.1 Strike, lockout or other labour dispute affecting the employees of HR Wise or the client wherein the latter case the effect is to prevent or hinder HR Wise’s operatives from performing its duties;
12.1.2 Acts of God;
12.1.3 Natural disasters;
12.1.4 Acts of war or terrorism;
12.1.5 Act or omission of government, highway authorities or telecommunications carrier, operator or administrator;
12.1.6 Delay in manufacture, production or supply by third parties of equipment or services required for the performance of the Service;
12.1.7 Any event preventing HR Wise’s operatives from attending the client’s premises to perform the services including but not limited to adverse weather conditions, road closure or congestion and mechanical breakdown;
12.1.8 Any hazard at the client’s premises including but not limited to impeded access or exit routes, structural defects, presence of noxious, combustible, radioactive or toxic substance which, in the reasonable opinion of HR Wise, comprises an unacceptable risk to the health and safety of its operatives;
13. Dispute Resolution
13.1 The parties shall attempt to resolve any dispute arising out of or relating to the Agreement through negotiations between senior executives of the parties, who have authority to settle the matter.
13.2 If the matter is not resolved by negotiation within 30 days of receipt of a written ‘invitation to negotiate’, the parties will attempt to resolve the dispute in good faith through an agreed Alternative Dispute Resolution procedure, or in default of agreement, through an ADR procedure as recommended to the parties by the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators.
13.3 If the matter has not been resolved by an Alternative Dispute Resolution procedure within 60 days of the initiation of that procedure, or if any party will not participate in the procedure, the dispute may be referred to arbitration by any party.
13.4 The seat of the arbitration shall be England and Wales.
13.5 The arbitration shall be governed by both the Arbitration Act 1996 and Rules as agreed between the parties.
13.6 Should the parties be unable to agree on an arbitrator or arbitrators, or be unable to agree on the Rules for Arbitration, any party may, upon giving written notice to the other parties, apply to the President or the Vice President, for the time being, of the Chartered Institute of Arbitrators for the appointment of an Arbitrator or Arbitrators and for any decision on rules that may be necessary.
13.7 Nothing in this clause shall be construed as prohibiting a party or its affiliate from applying to a court for interim injunctive relief.
14.1 This document together with any service-specific agreement and any Contract Specification constitutes the totality of the Agreement between the parties in relation to the subject matter and it supersedes all prior agreements and understandings relating to the subject matter.
14.2 Any amendments or variations will only be valid if they are recorded in writing and signed by all parties.
14.3 Any notices required by the Agreement will be sent to the signatories by electronic mail or a letter sent by registered post or recorded delivery to the addresses notified at the time of signature.
14.4 The Agreement is governed by English Law, and the English Courts have exclusive jurisdiction.
14.5 No party intends by virtue of the Contracts (Rights of Third Parties) Act 1999 that any of the terms should be enforceable by a person who is not a party to it.
14.6 No failure or delay by any party in exercising any right, power, or remedy under this Agreement is a waiver of any such right, power or remedy.
14.7 If any provision of the Agreement is unlawful, void or unenforceable it is severed from the Agreement and the remaining provisions remain in full force and effect.
1613-04/05/HRW/C | General Terms and Conditions | Version: 2.2 | Date published: 01/08/21