HEERD SUBSCRIBER TERMS AND CONDITIONS

These Terms and Conditions govern your participation in and use of the Heerd Subscriber Service, and any other services we provide to you, as delivered through our website (www.myheerd.com) or such alternative website, web pages or application as may be operated by Heerd Ltd from time to time.

These terms and conditions (the “Terms”), along with the Order Form agreed with you, will together form the agreement between you and Heerd Ltd (“the Agreement”). Please read both these Terms and the Order Form carefully as they affect your rights and obligations under the law.

If you do not agree to these Terms, please do not sign the Order Form.

Please also see our Privacy and Data Protection Policy for information about how we collect and use personal data through our App and Portal.

1. Introduction

1.1. Heerd is a subscription based software service which allows you to access performance ratings and other data provided by Users (through a native App) in relation to Employees, Places and other elements of your business.

1.2. In consideration for the fees outlined in the Order Form, and any other fees payable under this Agreement from time to time, you will be given access to the Portal.

1.3 By using the Portal or any other part of the Services you agree to be bound by the terms of this Agreement

1.4. Please note that these Terms may be amended from time to time. Notification of any changes will be made by us posting new terms onto the Portal. In continuing to use the Services you confirm that you accept the then current Terms in full. If you do not agree to any amended Terms then you may terminate the Services in accordance with this Agreement and the previous terms will apply pending such termination.

2. Definitions

In these terms and conditions the following terms shall have the following meanings:

“App”
means the Heerd App or such other native App or website as may be used to deliver services to Employees and Customers;
“Employee”
means an employee of your business or organisation who uses the App to provide Employee Profile Information to Users and Subscribers;
“Employee Profile”
means the page where the Employee will be able to provide, and the User will be able to access, information about them, their position and responsibilities, and the services they offer;
“Employee Profile Information”
means any data contained in an Employee’s profile;
“Fees”
means the fees due for the Subscription Service and Professional Services, as outlined in the Order Form;
“Heerd Data”
means any data relating to your business submitted by Users via the App, including without limit any data relating to Employees and/or Places;
“Initial Subscription Term”
means the initial subscription period, as set out in the Order Form;
“Place”
means the place or premises in which the User receives a service;
“Portal”
means the www.myheerd.com website or such other website as may be used to provide the Subscriber Service;
“Professional Services”
means any services outlined in the Order Form other than the Subscription Service;
“Services”
means the Subscription Service, any Professional Services and any Additional Services (as defined in clause 3.12);
“Subscriber”
means you, the organisation that subscribes to the Subscription Service in order to access the Heerd Data;
“Renewal Subscription Term”
means the renewal subscription period from the 1st January to the 31st December, after the Initial Subscription Perion, as set out in the Order Form;
Subscription Service
means the subscriptions outlined in the Order Form;
User
means a customer who uses the App to access Employee Profile Information and to view and provide performance ratings and other data for Employees and Places.

3. The Services

3.1 We will provide the Services subject to the terms of this Agreement. Unless we hear from you to the contrary, you will have accepted the Services on the conditions set out in the Agreement and they will apply to all other matters on which you continue to instruct us unless otherwise agreed.

3.2 The Services shall be as outlined in the Order Form or as agreed with you in accordance with clause 3.14 and we shall be under no obligation to provide the Services in accordance with any marketing materials provided to you or any oral or written correspondence between the parties prior to the Start Date.

3.3 Please note that in order to manage our resources and for the purposes of fair allocation each subscription package is limited to the maximum number of permitted Employees specified in the Order Form. We may from time to time during the term of this Agreement monitor the number of Employees using the Services and shall be entitled to charge you additional fees if the numbers using the Services exceed those specified in the Order Form.

3.4 Each Portal user must have a unique user ID and password combination. Multiple individuals shall not share a Portal user login. New Portal users may be set up for replacements of existing Portal users that have been de-activated, upon written confirmation to Heerd Ltd.

3.5 Please note that each separate business, company or division (where a division trades under a separate name) will be treated as a separate Subscriber for the purposes of these terms and each Agreement will cover a single business, company or division only, unless otherwise stipulated on the Order Form.

3.6 We shall have the right to make any changes to the Services which are necessary to comply with any applicable law or safety requirement, or which do not materially affect the nature or quality of the Services, and we shall notify you in any such event.

3.7 You may request a change in the Services at any time but we will only provide such alternative services if we believe we are qualified to do so. If such changes to the Services constitute a material change to those in the Order Form we reserve the right to revise our fees as previously agreed with you. We will not perform any alternative Services until such time as you have agreed to pay any such additional fees.

3.8 You agree to supply us with all necessary information which we will reasonably require for us to be able to perform the Services. If you do not provide us with such information we will not be liable to you for any failure to carry out the Services as a result including any failure to complete the Services within the Initial Subscription Term.

3.9 We will carry out the Services with reasonable care and skill.

3.10 Although we aim to offer the best service possible we make no promise or assurance that the Services will meet your requirements. We cannot guarantee that the Services will be fault free, we will endeavour to update the Services regularly but we provide no guarantee or warranty to that effect.

3.11 Your access to the Services may be occasionally restricted or suspended to allow for repair, maintenance or to introduce new facilities or services. We will attempt to restore the Services as soon as we reasonably can.

3.12 We reserve the right to make changes to the Services, the App and the Portal from time to time without notice to enhance or modify the Services.

Additional Services

3.13 You may request services in addition to the Subscription Service and Professional Services (“Additional Services”).

3.14 Additional Services can be requested by you at any time via telephone, email, in writing or in person. The nature of the Additional Services and the fees relating to the Additional Services will be confirmed in an Order Form which must be signed by both parties. In signing the Order Form, you will have accepted our Additional Services on the conditions set out in the Order Form and these Terms (which shall apply unless otherwise stated).

3.15 Services shall be provided during normal business hours. Work performed at your request outside of normal business hours on a weekend, holiday or more than nine (9) hours in a single day will be charged at Heerd Ltd’s then prevailing overtime rates. Heerd Ltd will advise you before any overtime charges are incurred.

4. Fees and payment

4.1 In consideration of payment of the Fees we will supply the Subscriber Service and, where relevant, the Professional Services to you.

4.2 The fees payable by you to us in respect of any services we provide will be those set out in the Order Form, together with the charges for any Additional Services and any expenses or disbursements we incur in the provision of the Services.

4.3 You must make payment of our fees in accordance with the payment terms in the Order Form, our invoice and any additional Order Form you sign in accordance with clause 3.14. If a deposit or initial payment is required then we reserve the right to not start providing the Services until we have received such deposit or initial payment. In the absence of any contrary terms in the Order Form, all invoices must be settled within 30 days.

4.4 If any sums are outstanding and due for payment to us we reserve the right to immediately suspend the provision of any further Services without further recourse to you.

4.5 You will be liable to pay additional fees to us in such circumstances where we are required to provide alternative or additional services or required to repeat the performance of Services already provided as a result of your actions or the actions of a third party who has also contracted to provide services in connection with the Services.

4.6 Value added tax will be charged (where appropriate) at the prevailing rate in addition to the Fees and any other fees, charges, expenses and disbursements payable to us pursuant to this Agreement. All amounts stated in the Order Form, any additional order forms and any correspondence with you are exclusive of value added tax unless specified otherwise.

4.7 All undisputed sums due from you which are not paid on the due date shall bear interest at one percent (1%) per month or the maximum permitted by law, whichever is less. All fees are exclusive of, and you will pay all taxes, levies or duties imposed by taxing authorities, excluding taxes based solely on Heerd’s income.

4.8 Payment shall be made without any set-off, deduction or counter-claim.

5. Changes to Fees and Services

5.1 Our Fees estimate, the Initial Subscription Term and any recommendation as to the services we believe you require has been provided on the basis of the information you have provided to us and the scope of work we have agreed with you. We shall not be liable if we cannot carry out the Services in the manner originally envisaged due to any facts or circumstances which were not immediately apparent at the point we entered into this Agreement with you or which were not disclosed to us.

5.2 We reserve the right to amend the Order Form and charge you for any additional services that are required in the event that facts or circumstances become apparent (which were not disclosed to us and were not immediately apparent at the point this Agreement was entered into) which are likely to impact on our provision of the Services by requiring additional work by us.

5.3 Subject to a cap of 5% on each individual increase, we reserve the right, on 1 January each year, to make such increases to any fees payable under clause 4 of this Agreement as we deem to be appropriate . If you object to such increase, you shall be entitled to terminate this Agreement at the end of the period in which we notify you of the increase, provided that your notice of termination is given in writing at least sixty (60) days prior to the end of that period.

5.4 Heerd Ltd may increase the Subscription Fees by the amount of any increase of the following costs incurred by Heerd in providing the Service: Hosting and license fees for any of the 3rd party software and hosting providers of the App and Portal if they are increased by more than five percent (5%) within any one year period. Heerd will provide notice to you at least thirty (30) days prior to the effective date of such increase.

6. Additional client obligations

6.1 You agree that you shall co-operate fully with us in all matters relating to the Services.

6.2 You must provide all information that we may reasonably require for the purposes of carrying out the Services.

7. Term and Termination

Professional Services and Additional Services

7.1 The Professional Services shall be provided on mutually agreed dates.

7.2 The Additional Services shall be provided on the dates agreed in accordance with clause 3.13.

Subscription Service

7.3 The “Start Date” for the Subscription Service shall be as specified in the Order Form.

7.4 The Subscription Service shall commence on the Start Date and shall continue for the Initial Subscription Term. Thereafter, this Agreement shall be automatically renewed for successive periods of 12 months (each a “Renewal Period”), unless it is terminated in accordance with this clause 7.

Termination

7.5 In the event that the Order Form does not specify a notice period, you may terminate this Agreement if you notify us of such termination, in writing:

7.5.1 at least sixty (60) days before the end of the Initial Subscription Term, in which case this Agreement shall terminate upon the expiry of the Initial Subscription Term; or

7.5.2 if the Initial Subscription Term has expired, at any time upon sixty (60) days’ written notice before the end of the Renewal Period.

7.6 You shall not be entitled to any refund of the Fees in the event that you terminate this Agreement in accordance with Clause 7.5.

7.7 We may terminate this Agreement at any time on sixty (60) days’ written notice.

7.8 Without affecting any other right or remedy available to us, we may terminate this Agreement with immediate effect by giving written notice to you if:

7.8.1 you fail to pay any invoice within ninety (90) days of it becoming due; or

7.8.2 you fail to co-operate with us in the performance of the Services; or

7.8.3 you become or we suspect that you are about to become insolvent or you cease to trade.

7.9 You shall not be entitled to any refund of the Fees or any other fees you have paid to us in the event that we terminate this Agreement in accordance with Clause 7.8.

7.10 You acknowledge that you shall have no entitlement to any part of the Services after termination of this Agreement.

7.11 All terms of this Agreement which are capable of surviving termination will continue in full force and effect following termination of this Agreement.

8. Term and Termination

8.1. There is no minimum term for this Service and you will be able to stop using the Service at any time without notice.

8.2. Please note that we may terminate the Service and delivery of Performance Ratings in relation to a Place or an Employee if the contract between the relevant third party and us is terminated or suspended for any reason.

8.3. We reserve the right to suspend or terminate the Service or any part of it at any time without liability.

8. Our Liability

8.1 Our liability in relation to this Agreement will be limited as follows:-

8.1.1 we will not be liable for any pure economic loss or for any indirect or consequential loss such as lost data, lost profit, loss of anticipated savings, business interruption or lost reputation arising from the use of the Services;

8.1.2 while we put systems in place to allow for Employees, Users and Subscribers to report offensive, inaccurate, misleading, defamatory, fraudulent or illegal content, we do not make any warranties or guarantees in relation to that content. If we are informed of any such content we will attempt to remove the content as soon as we reasonably can.

8.1.3 not be liable to you for loss arising from or in connection with any representations agreements statements or undertakings made prior to the date of you entering this Agreement other than those representations agreements statements or undertakings confirmed by our duly authorised representative in writing or expressly incorporated or referred to in this Agreement.

8.1.4 we provide no warranty that the Heerd Data supplied through the Portal is true, accurate and up to date;

8.1.5 we provide no warranty as to the competency or suitability of the Users;

8.1.6 our liability under these Terms will be limited to the amounts paid by you for the Services within the period of twelve months prior to any claim.

8.2 You agree that having regard to all the circumstances including (without limit) the price payable for the Services, the purpose of the Service, the general availability of insurance, the fact that it is very difficult for us to be aware of the business risks which you face and our efforts to bring this clause to your attention the limitations and exclusions set out in clause 8.1 are reasonable.

8.3 In the event that you have a dispute with any User or Employee arising from their use of any services provided by us you agree to pursue such claim or action independently of us, and you release us from all claims, liability and damages arising from any such dispute.

8.4 Nothing in these terms will exclude or limit our liability for death or personal injury arising as a result of our negligence.

9. Intellectual Property & Confidentiality

9.1 The parties may have access to information that is confidential to each other (“Confidential Information”). Confidential Information shall mean and include any information, whether disclosed before or after the date of this Agreement, including, but not limited to any kind of business, commercial or technical information and data concerning the party’s business prospects, strategy, business objectives, business transactions, financial arrangements, operations, systems and organization, methods, standards, specifications, concepts, ideas, plans, projects, programs or procedures, trade secrets, know-how, lists, notes, drawings, reports, software, databases, development methods, system design, “Property Information” (defined below) or any other information of or relating to its business disclosed in connection with this Agreement.

9.2 Confidential Information shall not include any information that (i) is already known to the receiving party prior to disclosure by the disclosing party; (ii) becomes a part of the public domain through no act or omission of the receiving party, (iii) is independently developed by the receiving party without use or reference to the disclosing party’s Confidential Information, or (iv) is disclosed to the receiving party by a third party that, to the receiving party’s knowledge, was not bound by a confidentiality obligation to the disclosing party. Each party’s Confidential Information may only be used by the other party in order to fulfill its obligations under this Agreement. During the term of this Agreement and for a period of two (2) years following expiry or termination of this Agreement, each party agrees to maintain the confidentiality of the Confidential Information and to protect as a trade secret any portion of the other party’s Confidential Information by preventing any unauthorized copying, use, distribution, or transfer of possession of such information. Each party agrees to maintain at least the same procedures regarding Confidential Information that it maintains for its own Confidential Information, but in no event will such procedures be less than commercially reasonable. Without limiting the generality of the foregoing, neither party will permit any of its personnel to remove any proprietary or other legend or restrictive notice contained or included in any material provided by the discloser and the recipient shall not permit its personnel to reproduce or copy any such material except as expressly authorized hereunder. If it is required to disclose any portion of the disclosing party’s Confidential Information to a third party subcontractor of the receiving party in order to fulfill the obligations under this Agreement, such disclosure shall only be made provided that: The receiving party takes all reasonable measures to ensure confidentiality is maintained by the subcontractor (including obtaining in writing that the subcontractor agrees to assume obligations equivalent to those described in this Section 9) and shall assume full responsibility for the acts or omissions of the subcontractor in relation to the Confidential Information that has been disclosed to him. If the receiving party is required by a lawful order from any court or authority to disclose the Confidential Information of the disclosing party, the receiving party shall promptly notify the disclosing party of any such order, so that the disclosing party may take reasonable steps to limit further disclosure, including obtaining a protective order or other reasonable assurance that confidential treatment will be accorded the Confidential Information. If, in the absence of a protective order, the receiving party is compelled as a matter of law to disclose the Confidential Information of the disclosing party, the receiving party will disclose only the part of such Confidential Information as is required by law to be disclosed. Upon termination of this Agreement, each party shall promptly return or destroy all of the other party’s Confidential Information in its possession and provide written certification of such return or destruction. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Section, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate. The obligations of the parties in this Section 9 shall survive the termination of this Agreement.

9.3 The obligations described in this Section 9 shall not apply to the disclosure of Confidential Information by each party to its financial auditors within the context of their legal obligations.
If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information of the disclosing party in breach of this Section, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.

9.4 You acknowledge that the App and Portal contains confidential information and proprietary intellectual property rights. All such rights including copyright, trademarks, patents and other rights in the App and Portal and used in the provision of the Subscriber Service are the exclusive property of Heerd Ltd and its licensors.

9.5 You must not:

9.5.1 copy, reproduce, reverse compile, modify or adapt the whole or any part of the App, Portal or the Subscriber Service;

9.5.2 save solely for the purposes expressly permitted by and in accordance with s. 296A(1) CDPA or s. 50B(2) CDPA copy adapt or reverse compile the whole or any part of the software which operates the App or Portal or any other part of the Subscriber Service;

9.5.3 assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the App, Portal, Subscriber Service or software on behalf of any third party or make available the same to any third party; or

9.5.4 allow more than the permitted number of Employees to use or access the Service.

9.6 You must notify us immediately if you become aware of any unauthorised use of the whole or any part of the Service or any breach of our intellectual property rights by any third party and take all such other steps as may from time to time be necessary to protect our confidential information and intellectual property rights.

9.7 We shall own all intellectual property rights (including without limit copyright) in any reports, data, information, training manuals or other materials in any medium which are communicated or provided to you as part of the Services

9.8 You warrant that you:

9.8.1 shall not copy, distribute, sell, reproduce, license or otherwise deal in the Materials in whole or in part;

9.8.2 shall only use the Materials for internal purposes; and

9.8.3 shall not incorporate all or any part of the Materials in any studies, analyses or other work whether for a fee or otherwise without our prior written consent, which consent shall not be unreasonably withheld or delayed. If we do so consent to any further use of the Materials, you shall use all reasonable endeavours to credit Heerd Ltd as the source of those Materials; and

9.8.4 you agree to indemnify us against all costs, claims, losses, liabilities and expenses to the extent the same arise out of or in connection with any breach of this clause 9.8.

9.9 We shall not be liable if the App, Portal or the Materials are modified other than with our consent, or if they are used for any purpose other than for the purposes for which they were created.

10. Availability of the Service

10.1 Although we aim to offer the best service possible we make no promise or assurance that the Services will meet your requirements. We cannot guarantee that the service will be fault free, we will endeavour to update the Services regularly but we provide no guarantee or warranty to that effect.

10.2 Your access to the Services may be occasionally restricted or suspended to allow for repair, maintenance or to introduce new facilities or services. We will attempt to restore the Services as soon as we reasonably can.

11. Force Majeure

11.1 Neither party shall be responsible for any failure to perform its obligations (other than payment obligations) under this Agreement of performance of such obligations is prevented or delayed by “Force Majeure Events” as defined in the Order or any cause beyond reasonable control. In the even that Force Majeure Events prevent use of the Services for more than ten (10) consecutive days, your sole remedy is to terminate the Subscription Term applicable to the Service on thirty (30) das prior written notice to Heerd. In such case, neither party will be liable for penalties or damages arising out of a failure to perform under this Agreement. However, in such event, Heerd shall provide you with a pro-rata refund of any pre-paid but unused Subscription Term.

12. General

12.1 No term of the Agreement will be enforceable by virtue of the Contract (Rights of Third Parties) Act 1999 by any person that is not a party to it.

12.2 Each of the parties warrants its power to enter into the Agreement and has obtained all necessary approvals to do so.

12.3 You accept that the Services were not designed and produced to your individual requirements and that you are responsible for the selection of the Services.

12.4 Neither party shall be liable to the other for any breach of its obligations resulting from causes beyond its reasonable control with the exception of payment obligations which will not be subject to this clause 12.4.

12.5 Each party acknowledges that these Terms and Conditions and the Order Form contain the whole Agreement between the parties and that it has not relied upon any oral or written representations made to it by the other or its employees or agents and has made its own independent investigations into all matters relevant to it.

12.6 You are not entitled to assign or otherwise transfer this Agreement of any of your rights or obligations, nor are you permitted to resell, sub license or charge the use (in whole or in part) of the Services without our prior written consent. We will be entitled to assign or transfer all of our rights and obligations under this Agreement.Headings to clauses in this Agreement are for the purpose of information and identification only and shall not be construed as forming part of this Agreement.

12.7 Any notice to be served on either of the parties by the other shall be sent by pre-paid recorded delivery, registered post, fax or email to the address of the relevant party shown in the Order Form at the start of this Agreement or such other physical or electronic address as may be notified by one party to the other.

12.8 This Agreement may be executed in any number of counterparts and by the parties to it on separate counterparts, each of which will be an original and all of which together shall constitute one instrument. This Agreement shall not be effective until each of the parties has executed at least one counterpart.

12.9 If any provision of this Agreement is, or is found to be, illegal, invalid or unenforceable, the remaining provisions shall continue in full force and effect and shall not be affected by such illegality, invalidity or unenforceability.

12.10 Any failure by a party to this Agreement to exercise or enforce any right or to enforce any obligation of the other party will not amount to a waiver of that right and that party will remain entitled to enforce that right. <.

12.11 This Agreement shall be governed by and construed in accordance with English law and the parties hereto agree to submit to the non exclusive jurisdiction of the English courts.