The Product Licence Agreement is between you (the Customer) and Talent Pack (The supplier) trading as “Talent Pack”, incorporated and registered in Ireland with company number 376720 whose registered office is at Orchard House, Clonskeagh Square, Dublin 14, Ireland. The Supplier is the owner and licensor of Software defined in the Contract Form and is willing to license the Customer to use these products.
The definitions and rules of interpretation in this Clause apply in this Agreement.
Business Day: Monday to Friday, not including Irish public holidays.
Business Hours: 8.30am to 5.30pm, GMT, on a Business Day, and “Non-Business Hours” shall be all other times.
Commencement Date: means the beginning of the Term of this Agreement and the date upon which the Customer first accesses and uses the Software in live use (i.e. not using the Software solely in the course of testing), and that date is set out in the Contract Form.
Contract Form: means the form that details the customer specific terms, which forms part of the Product Licence Agreement.
Customer Data: means logos, job descriptions and data processed or intended to be processed by the Customer using the Software or by Talent Pack pursuant to this Agreement, including any data submitted by prospective applicants to the Customer, or by the Customer to Talent Pack.
Consumer Price Index: the most recent Consumer Price Index published by the Irish Central Statistics Office.
Data Protection Legislation: the Data Protection Acts, 1988 to 2003, as amended from time to time, or any other applicable data protection laws.
Defect: failure of the Software to perform in all material respects to the Product Specification issued by the Supplier during the Term to reflect any modification, new version or update of the Software.
Fees: the licence fee payable by the Customer to the Supplier under Clause 7.
Governing law and jurisdiction: the product licence agreement is governed by and construed in accordance with Irish law and parties hereby submit to the non-exclusive jurisdiction of the Irish courts.
Intellectual Property Rights: patents, rights to inventions, copyright and related rights, trademarks and service marks, trade names and domain names, rights in get-up, rights to goodwill or to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights.
Personal Data: means personal data as defined by the Data Protection Legislation.
Product Specification: the list of features and functions offered by the product edition listed on the Contract Form and available via www.talentpack.com/features
Service: means any service provided or to be provided by the Supplier pursuant to the Product Licence Agreement, including the Software Support Services.
Software: the computer programs as listed on the Contract Form as described in the Product Specification and any modification, new version or update of those computer programs which the Supplier, at its sole discretion, decides to make during the Term.
Software Support Services: the form of Software support set out in Schedule 2.
1. Licence and term
1.1 In consideration of the Fees paid by the Customer to the Supplier, the Supplier grants to the Customer a non-exclusive, personal, non-transferable licence to use and access the Software during the Term for the sole purpose of processing the Customer Data.
1.2 In relation to scope of use for the purposes of Clause 1.1, “use” of and “access” to the Software shall be restricted to:
(a) accessing and using the Software for the purpose of processing the Customer Data for the normal business purposes of the Customer (which shall not include allowing the use of the Software by, or for the benefit of, any person other than an employee of the Customer);
(b) granting access to and the right to use the Software to such of its employees, agents and subcontractors as may be reasonably necessary to process the Customer Data;
1.3 Accessing the Software solely via online web URL that may be notified to the Customer by Talent Pack and the Customer shall be responsible and liable for the acts and omissions of any employee, agent or subcontractor. This initial term of the Product Licence Agreement begins on the Commencement Date and continues for the period specified in the Contract Form (the “Initial Term”), unless terminated earlier pursuant to this Agreement.
1.4 By logging into your product account and accessing the website or by accessing any of our Products by means of any API interface, you accept the Product Licence Agreement.
2. Supplier obligations
2.1 Within 3 Business Days of the Commencement Date the Supplier shall grant access to the Software for use by the Customer. The Customer acknowledges and agrees that this process requires information and assistance from the Customer and the Customer shall co-operate with the Supplier in providing such information and assistance. As part of the process the Supplier shall issue a unique username to the Customer and the Supplier shall ensure that any user passwords chosen by the Customer or a Customer user of the Software shall not be provided to any third party by the Supplier.
2.2 As part of the Services, the Supplier agrees to use reasonable endeavours to ensure that the Software is capable of being used by the Customer for live use (i.e. not in testing) by the Commencement Date; and on the terms and conditions set out in this Agreement.
2.3 The Supplier will be responsible for taking reasonable steps to implement and enforce reasonable procedures to protect the Software, any Customer Data held by it and its systems from unauthorised access, and the downloading of and effects of any computer virus. The Supplier or its partners will be responsible for taking reasonable steps to implement and enforce firewall and other security procedures with which the Customer shall comply with when accessing and using the Software. Such steps include taking steps to counter the top ten application security vulnerabilities according to the Open Web Application Security Project (OWASP).
3. Customer obligations
3.1 The Customer shall notify the Supplier promptly if the Customer becomes aware of any unauthorised access to, use or copying of any part of the Services or Software by any person.
3.3 The Customer shall be responsible for providing information and doing what is reasonably necessary and requested to enable the Supplier to perform its duties and obligations under this Agreement provided that this shall not require the Customer to expend unreasonable costs, time or resources.
3.4 The Customer shall be responsible for the accuracy and completeness of the Customer Data it submits for processing by the Software.
3.5 The Customer acknowledges that it is solely responsible for:
(a) all computer hardware, software, telecommunications lines and facilities which it obtains, has and/or operates;
(b) using any particular supplier of such hardware, lines and facilities; and
(c) taking reasonable steps to ensure that such hardware, lines and facilities are compatible with, and do not detrimentally affect the provision or performance of the Software.
4. Security, Access to and Use of the Software and Services
4.1 Upon receipt of a username pursuant to Clause 2.1 the Customer will set up user passwords using the Software and shall be solely responsible for the use and access to the Software via those username and passwords.
4.2 The Customer will not use or permit anyone else to use the Services or Software for any purpose contrary to Applicable Law, will use them only in the ordinary course of its business and will use them in accordance with this Agreement.
4.3 A username may only be used by one person – a single login shared by multiple people is not permitted. Additional separate logins may be purchased for additional users on your account.
4.4 The Customer will be responsible for ensuring the integrity of such of its systems, hardware and software that interface with the Software or Services, and, in particular, will take reasonable steps to implement and enforce reasonable procedures to protect such systems and software from unauthorised access and the downloading of and effects of any computer virus.
4.5 Due to the inherent risks of internet usage, the Supplier does not accept any liability for loss to the Customer as a result of connecting to the Software and Services through the medium of the internet or any other telecommunications system.
4.6 Customers are responsible for all Content posted and activity that occurs under your account and all users under your account.
4.7 Customer understands that Talent Pack uses third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Software.
5.1 The Supplier may suspend or otherwise limit the Customer’s access to use any one or more features of the Software in the event of any suspected illegal activity or requests by law enforcement or other government agencies. The Supplier shall use reasonable endeavours to notify the Customer of its intention to impose any suspension or limitation, and the reason for such, before it imposes such suspension or limitation.
6.1 Each party warrants to the other that:
(a) it is fully authorised to enter into, and to perform its obligations under, this Agreement; and
(b) this Agreement constitutes valid, legal and binding obligations enforceable against it, except for the effect of bankruptcy, insolvency, re-organisation, moratorium and other similar laws relating to or affecting creditors’ rights generally and to general equitable principles.
7.1 In consideration of the Services and the licence of the Software the Customer shall pay to the Supplier the Fees set out on the Contract Form. All sums payable under this Agreement are exclusive of VAT, for which the Customer shall be responsible. Such Fees shall be paid annually in advance by the Customer to the Supplier within 30 days of the date of the Supplier’s invoice.
7.2 If the Customer fails to pay any amount payable by it under this agreement, the Supplier shall be entitled (but not obliged) to charge the Customer interest on the overdue amount, payable by the Customer forthwith on demand, from the due date up to the date of actual payment, after as well as before judgment, at the rate of 2% per annum above the base rate for the time being of Bank of England. Such interest shall accrue on a daily basis.
8. Software Support Services
8.1 From the date of providing the Customer with the user name referred to in Clause 2.1 the Supplier shall provide the Software Support Services to the Customer with a view to ensuring that the Software performs in all material respects to the Product Specification. During the Term the Customer shall notify the Supplier of any Defect in accordance with Schedule 2 and the Supplier agrees to provide the Software Support Services to the Customer in respect of any Defects in accordance with the Software Support Services levels set out in Schedule 2.
8.2 When providing the Software Support Services the Supplier may, at the Supplier’s option, do one of the following:
(a) repair the Software; or
(b) replace the Software; or
(c) terminate this Agreement immediately by notice in writing to the Customer and refund any of the Fees paid by the Customer (less a sum calculated on a pro rata basis having regards to the period to which the Fees related);
provided the Customer provides all the information that may be necessary to assist the Supplier in resolving the Defect, including sufficient information to enable the Supplier to re-create the Defect.
8.3 The Supplier shall not be obliged to provide the Software Support Services to the Customer in respect of any Defect that results from the Customer, or anyone acting with the authority of the Customer, having misused, incorrectly used or damaged the Software or from any breach of the Customer’s obligations under this agreement.
8.4 The Supplier does not warrant that the use of the Software will be uninterrupted or error-free. The Customer accepts responsibility for the selection of the Software to achieve its intended results.
8.5 The software availability consists of the following:
(a) Delivery over a one year period: 99.9% availability of the use and access to the Software to the Customer during Business Hours.
(b) Delivery over a one year period: 99.1% availability of the Talent Pack Service to the Customer during Business Hours and Non-Business Hours.
The Software will be available to the Customer’s users to whom passwords have been allocated to log in and use. Planned maintenance is normally scheduled by the Supplier outside of Business Hours
8.6 Where the Supplier plans maintenance or support of the Software, or a modification, new version or update of the Software the Supplier will use reasonable endeavours to inform the Customer in advance of such Services.
Where the Supplier carries out unplanned Software maintenance or support of the Software it will use reasonable endeavours to inform the Customer in advance, but in any event will inform the Customer as soon as is practicable and major
Software Defects will be reported to the Customer within 2 Business Days of the Supplier becoming aware of the Defect.
8.7 As part of the Software Support Services the Customer shall receive re-active assistance from the Supplier through a structured 2 Level Helpdesk support framework during Business Hours.
To receive the Software Support Services the Customer shall promptly report any Defect to the Supplier into Level 1 Helpdesk Support by email.
The Defect shall be queued and evaluated by the Supplier, and either resolved or escalated to Level 2 Support.
Where the Supplier, in its sole discretion, escalates a Defect to Level 2 Support as part of the Software Support Services a more technical focused resolution is typically required to be implemented by the Supplier.
The Supplier shall respond to the Customer regarding all reported Defects within 1 Business Day. If the Defect cannot be fixed or resolved by the Supplier within 1 Business Day the Supplier will inform the Customer of the estimated resolution timeframe for remedying the Defects.
The Supplier will take all reasonable measures to ensure that the Customer Data is accessible at all times by the Customer.
9. Intellectual property rights
9.1 The Customer retains all Intellectual Property Rights in the Customer Data. The Supplier reserves the right to return specific Customer Data to the Customer where it receives notice of an action, claim, allegation or complaint from a third party in respect of the specific Customer Data and shall notify the Customer if it becomes aware of any such an action, claim, allegation or complaint.
9.2 The Customer acknowledges that all Intellectual Property Rights in the Software and Documentation belong and shall belong to the Supplier, and the Customer shall have no rights in or to the Software and Documentation other than the right to use them in accordance with the terms of this Agreement.
9.3 The trademarks, service marks and logos of Candidate Manger and its products are the property of Talent Pack. The customer does not have rights to use such Trademarks and nothing contained in this web site or the Terms of Service grants any right to use any Trademarks without the prior written permission of Talent Pack. Note: as part of our service we include logos and the words “powered by: [product name]” in the web and social media pages. Inclusion of the logo, along with your job listings and application process, is a condition of use for our service.
10.1 Either party may terminate this Agreement at any time on written notice to the other if the other:
(a) is in breach of any of the terms of this Agreement and the other party fails to remedy that breach within thirty days after receiving written notice requiring it to remedy that breach; or
(b) is unable to pay its debts, or becomes insolvent.
10.2 This agreement will expire at the end of the Term stated in the Contract Form except where the contract is renewed by the Customer.
10.3 In the event that the Customer has defaulted in payment of the Fees, the Supplier may;
(a) furnish the Customer with fourteen (14) days prior written notice of its intention to terminate this Agreement; and
(b) may terminate this Agreement should the Customer not remedy this default within that notice period.
10.4 On termination for any reason:
(a) all rights granted to the Customer under this Agreement shall cease; and
(b) the Customer shall cease all activities authorised by this Agreement;
10.5 The Customer agrees and acknowledges that the Supplier may retain archival or back-up copies of the Customer Data that is not in live use on termination because of the technical difficulties in accessing and deleting all back-up copies of the Supplier’s databases provided that the Supplier shall cease all use of the Customer Data for any purpose other than retaining archival or back-up copies of the Customer Data. The Supplier agrees and acknowledges that Clauses 9.1, 12 and 13 shall continue to apply to the Customer Data following termination of this Agreement.
11. Force majeure
No party shall be liable to the other for any delay or non-performance of its obligations under this Agreement arising from any cause beyond its control including, without limitation, any of the following: act of God, governmental act, war, fire, flood, explosion, power surges or outages, strikes or employment disputes, or civil commotion. For the avoidance of doubt, nothing in Clause 11 shall excuse the Customer from any payment obligations under this Agreement.
12. Data Protection
12.1 The Supplier agrees that, to the extent it processes any Personal Data on behalf of the Customer:
(a) it agrees to be bound by and comply with the provisions of the data protection legislation; and
(b) it does so as agent of the customer and it shall process personal data only on, and strictly in accordance with, the instructions of the customer and solely as strictly necessary for this performance of its obligations under this agreement; and
(c) it has in place appropriate technical and organisational security measures against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data as is required to comply with its obligations under the Data Protection Legislation.
12.2 The Customer warrants that it has full capacity, authority and all consents to disclose the Customer Data, any user and any Personal Data to the Supplier, including but not limited to, pursuant to the Data Protection Legislation.
12.3 Talent Pack does not pre-screen Customer Data, but Talent Pack and its designee have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Software.
12.4 Talent Pack allows the user to transmit or publish content via social networks or other third party service providers. The customer shall be solely responsible for such content and the consequences of its transmission or publication. Any content made public will be publicly accessible through the internet and may be crawled and indexed by search engines. The customer should only use third party service providers where they have reviewed and agree to their respective data privacy policies.
13. Confidentiality and publicity
13.1 Each party shall, during the term of this Agreement and thereafter, keep confidential all, and shall not use for its own purposes nor without the prior written consent of the other disclose to any third party any, information of a confidential nature (including, without limitation, the Software, Documentation trade secrets and information of commercial value).
13.2 The terms of this Agreement are confidential and may not be disclosed by the Customer without the prior written consent of the Supplier.
13.3 The provisions of Clause 13 shall remain in full force and effect for the period of up to one year after the termination of this Agreement.
No forbearance or delay by either party in enforcing its rights shall prejudice or restrict the rights of that party, and no waiver of any such rights or of any breach of any contractual terms shall be deemed to be a waiver of any other right or of any later breach.
If any provision of this Agreement is judged to be illegal or unenforceable, the continuation in full force and effect of the remainder of the provisions shall not be prejudiced.
16.1 Any amendment, waiver or variation of this Agreement shall not be binding on the parties unless set out in writing, expressed to amend this Agreement and signed by or on behalf of each of the parties.
16.2 Talent Pack reserves the right to modify or discontinue, temporarily or permanently, the Software (or any part thereof) with 30 days prior notice.
16.3 Talent Pack shall not be liable to you or to any third party for any modification, price change, suspension or discontinuance of the Software.
16.4 The Supplier may modify the Terms upon notice to you at any time. You will be provided notice of any such modification by email or by publishing the changes on our website www.talentpack.com/legal/terms-of-service/. You may terminate your use of the Services if the Terms are modified in a manner that substantially affects your rights in connection with use of the Services. Your continued use of the Service after notice of any change to the Terms will be deemed to be your agreement to the amended Terms.
Any notice required to be given pursuant to this agreement shall be in writing, and shall be sent to the other party marked for the attention of the person at the address set out for such party in this Agreement.
The Customer agrees that damages will be an inadequate remedy for any breach of its obligations this Agreement and that the Supplier will be entitled to apply for and obtain relief to restrain the breach or threatened breach of, or otherwise specifically to enforce, the Customer’s obligations under this Agreement.
19.1 The Supplier shall have no liability for any losses or damages which may be suffered by the Customer (or any person claiming under or through the Customer), whether the same are suffered directly or indirectly or are immediate or consequential, loss of profits, anticipated savings, business opportunity or goodwill, loss of data or special damage
19.2 The Customer shall indemnify and keep fully and effectively indemnified and hold harmless the Supplier against any and all loss, damages, demands, liability, costs, claims or expenses (including legal costs and expenses) which the Supplier may suffer or incur by reason of the breach of any of the provisions of this Agreement by the Customer, its employees, agents or subcontractors howsoever caused or the acts, omissions or negligence of employees, agents and subcontractors who are permitted access to and/or use of the Software.
20. Entire agreement
21. Assignment and Subcontracting
21.1 In relation to assignment and subcontracting:
(a) the Customer has no right to subcontract or to assign the benefit or burden of this Agreement in whole or in part, or to allow the Software to become the subject of any charge, lien or encumbrance without the prior written consent of the Supplier.
(b) the Supplier may sub-license, assign, charge, subcontract or otherwise transfer any of its rights or obligations under this Agreement, provided it gives written notice to the Customer of any sub-licence, assignment, charge, subcontract or other transfer.