1 Definitions and Interpretation
1.1 In this Agreement, unless the context otherwise requires, the following expressions shall have the following meanings:-
"Authorised Purpose" means use of Rightcheck mobile app by your appointed users the to perform Right to Work checks on their smartphone or tablets - these devices must be utilising the current, or previous version of the relevant mobile operating system. In addition to this means, you may appoint administrators to manage your Right to Work checks using the Rightcheck web-based application.
"Commencement Date" means date upon which this Agreement is accepted by or on behalf of both Parties;
"Confidential Information" has the meaning given to that term in Clause 5.1;
"Control" means, in relation to a body corporate, the power to secure that its affairs are conducted in accordance with the wishes of the controlling body, as defined in Sections 736 and 736A of the Companies Act 1988, and "Controlled" shall be construed accordingly;
"Documentation" means the user instructions, installation guide and all other written or electronic information supplied to the Subscriber by Rightcheck concerning the use of the Software as may be updated from time to time by Rightcheck;
"Fees" means the fees payable by the Subscriber under the terms of this Agreement for use of Rightcheck in accordance with this agreement;
"Intellectual Property Rights" means any trademarks, domain names, design rights, patents, copyright and moral rights, rights in databases, rights in confidential information and all other intellectual property rights, in each case, whether registered or unregistered (and including applications for the grant of any of the foregoing) and all rights or forms of protection having equivalent or similar effect to any of the foregoing which may subsist anywhere in the world;
"Rightcheck Trade Marks" means any Rightcheck trade mark and/or logo which from time to time may be incorporated into or appear as part of the Software and/or Documentation;
"Party" means either Rightcheck or the Subscriber (as appropriate) and "Parties" shall be construed accordingly;
"Rightcheck" means Rightcheck software which is branded and produced by T4 Communications UK Limited, registered in England, company number 06240820
“Software” means either;
Rightcheck mobile application that facilitates the employer’s obligation to carry out compliant right to work checks. End-users will download the application to an iOS or Android enabled smart phone or tablet.
Or, Rightcheck web-based application that allows users to review, approve, reject and download submitted checks. It also includes functionality to upload a previously taken manual check. Access at varying levels can be allocated to specific users across the organisation.
"Subscriber" means the person who registers to use the Service, and, where the context permits, includes any entity on whose behalf that person registers to use the Service.
"Support Services" means the support services specified in Clause 12;
"Update" means any update to the Software and Documentation which may be issued by Rightcheck from time to time;
“Working Day” means Monday to Friday excluding English Bank holidays and Public holidays.
1.2 Save to the extent that the context or the express provisions of the Agreement require otherwise, in this Agreement:-
(a) words importing the singular shall include the plural and vice versa;
(b) words importing any gender shall include all other genders;
(c) any reference to a Clause or Schedule is to the relevant clause or schedule in or to this Agreement;
(d) reference to this Agreement or any other document shall be construed as reference to this Agreement or that document as modified, amended, varied, supplemented, assigned, novated or replaced from time to time;
(e) references to any statute or statutory provision (including any subordinate legislation) include any statue or statutory provision which amends, extends, consolidates or replaces the same, and shall include any orders, regulations, instruments or other subordinate legislation made under the relevant statute;
(f) references to a "person" includes any individual, firm, company, corporation, body corporate, government, state or agency of a state, trust or foundation, or any unincorporated body, association or partnership (whether or not having separate legal personality) of two or more of the foregoing;
(g) any phrase introduced by the words "including", "include", "in particular" or any cognate expression shall be construed as illustrative only and shall not be construed as limiting the generality of any preceding words; and
(h) the words "other" and "otherwise" shall not be construed ejusdem generis with any foregoing words where a wider construction is possible.
1.3 The headings to Clauses are inserted for convenience only and shall not affect the interpretation or construction of this Agreement.
2 Commencement and Duration
This Agreement shall come into force on the date you confirm the subscription and remain in force for the duration of the subscription period, or until terminated by either Party in accordance with Clause 14.
3.1 Rightcheck hereby grants to the Subscriber a non-exclusive, non-transferable, non-sub-licensable (except in accordance with the terms of this Agreement) licence for the term of this Agreement to:
3.1.1 use the Software and the Documentation for the Authorised Purpose
3.1.2 the Subscriber will pay to Rightcheck the appropriate Fee calculated in accordance with Clause 5.
3.2 It shall be the Subscriber's responsibility to ensure the Software is used in conjunction with equipment, hardware and software which meets the minimum capacity requirements listed in the Documentation and that the Subscriber's use of the Software is not in breach of any relevant legislation or other legal requirement, including without limitation the requirements of the Data Protection Act 1998 and any regulations made under that Act.
3.3 The Software has been designed to facilitate and not substitute the Subscriber’s responsibility when carrying out a right to work check. The Subscriber is still responsible for making sure the check is completed in its entirety and to the best of their ability. Rightcheck will not, pursuant to this Agreement, perform any management functions or make any judgements or decisions for the Subscriber. While Rightcheck may in the course of performing its obligations under this Agreement provide advice on matters relevant to a decision by the Subscriber, responsibility for all of the Subscriber’s decisions, for any results arising from your decisions, and for management of any consequences shall rest solely with the Subscriber.
3.4 Rightcheck acknowledges that they shall have no rights in respect of any information or data stored on the software by the Subscriber.
4 Fees and Charges
4.1 In consideration of the licence granted under Clause 3.1, the Subscriber shall pay to Rightcheck the Fees in accordance with an agreed subscription.
4.2 All Fees and other charges payable under this Agreement are exclusive of any VAT, which shall be payable by the Subscriber.
4.3 If any sums payable to Rightcheck under the Agreement are in arrears for more than thirty (30) days after the due date, Rightcheck reserve the right without prejudice to any other right or remedy to suspend the Subscriber's right to use the Software and/or the provision of any services, including Support Services, without notice and to charge interest on any outstanding balances at the statutory rate from time to time in force (this rate applying after as well as before any court award or judgement in Rightcheck's favour in respect of outstanding balances).
5 Confidential Information
5.1 "Confidential Information" shall mean all information embodied in the Software and Documentation and all other information imparted by either Party to the other Party and marked as confidential (either in writing or by oral notice), or that by its nature the Party receiving such information ought reasonably to know is confidential, but excluding information already rightfully in the possession of the Party receiving such information at the time of receipt, or which is already in the public domain or which becomes so (otherwise than in breach of the Agreement).
5.2 Each Party shall keep in confidence and not disclose to any person or use any Confidential Information of the other Party except as strictly necessary for the purposes of the Agreement unless such Confidential Information is required to be disclosed as a matter of law and/or regulation.
6 Inspection Rights
Subject to Rightcheck providing the Subscriber with reasonable notice, the Subscriber shall provide reasonable assistance to Rightcheck to allow Rightcheck to access any and all material (including without limitation all documents and equipment necessary to allow Rightcheck to verify use of the Software and Documentation in accordance with the terms of this Agreement) in order to enable Rightcheck to verify the Subscriber's compliance with the terms of this Agreement.
7 Branding and Intellectual Property Rights
7.1 Rightcheck acknowledges that the Rightcheck Trade Marks are incorporated into the Software and the Documentation and hereby acknowledges that the licence granted under Clause 3 extends to the Subscriber's use of the Rightcheck Trade Marks, but only to such extent as is incidental to use of the Software and the Documentation for the Authorised Purpose. For the avoidance of doubt, the Subscriber shall not use the Rightcheck Trade Marks or any other Rightcheck trade mark or brand image on any marketing or promotional materials without Rightcheck's prior written consent.
7.2 The Subscriber acknowledges that the Software, Documentation and Rightcheck Trade Marks shall at all times remain the property of Rightcheck and that nothing in the Agreement shall transfer to the Subscriber any title in the Software, Documentation or Rightcheck Trade Marks or any associated Intellectual Property Rights.
7.3 The Subscriber recognises that any Intellectual Property Rights subsisting in any works produced during the course of any services provided by Rightcheck to the Subscriber under this Agreement, wherever in the world such rights arise, shall belong to Rightcheck.
8.1 Rightcheck warrants to the Subscriber for the term of the Agreement that:-
8.1.1 Rightcheck has the right to grant the Subscriber a licence to use the Software and Documentation as provided for in this Agreement; and
8.1.2 any services performed by Rightcheck under the Agreement will be performed in a workmanlike manner in accordance with generally accepted standards within the computer industry.
8.2 Without prejudice to any other term of this Agreement Rightcheck does not warrant that operation of the Software will be uninterrupted or error free.
8.3 The warranties in this Clause 8 and the other express provisions of this Agreement set out in the full extent of Rightcheck's obligations and liabilities concerning its subject matter. All other warranties, conditions, terms, undertakings and obligations which might otherwise be implied into this Agreement, including without limitation any implied terms of satisfactory quality or fitness for purpose are hereby excluded to the fullest extent permitted by law.
8.4 The warranties set forth in this Clause 8 shall not be effective, and Rightcheck shall not have any obligation or liability to the Subscriber, if the Software:
8.4.1 is not used in accordance with the Documentation and subject to the terms of this Agreement or is used in conjunction with hardware, mobile devices or other software which Rightcheck does not support for the purpose; or
8.4.2 has been altered, modified or revised by the Subscriber or other third party without Rightcheck's express approval; or
8.4.3 fails for any reason outside Rightcheck's control including but not limited to actions by the Subscriber or other third party or the malfunction of machinery, hardware or other software.
8.5 If, upon investigation by Rightcheck, a problem is found not to be Rightcheck's responsibility under the provisions of this Clause 8, Rightcheck will notify the Subscriber of this finding and reserves the right, immediately following such notification, to charge the Subscriber forthwith for all reasonable costs and expenses incurred by Rightcheck in the course of or in consequence of such investigation.
8.6 The Subscriber acknowledges that the Subscriber is responsible for ensuring that the Subscriber's users of the Software have received sufficient training and have the necessary understanding of the regulatory and commercial background to the subject matter of the Software to make proper use of and obtain proper benefit from the Software and that on that basis, Rightcheck shall have no obligation to provide training to the Subscriber in relation to the subject matter or use of the Software.
8.7 As between the Subscriber and Rightcheck, the Subscriber accepts sole responsibility for the accuracy of all data processed using the Software and the results obtained there from to the extent that the results depend upon the accuracy of the Subscriber's data.
8.8 Except in the case of fraudulent misrepresentation by Rightcheck, the Subscriber hereby warrants that the Subscriber has not been induced to enter into the Agreement by any prior representations, whether oral or in writing and the Subscriber hereby waives any claim for breach of any such representations.
8.9 The Subscriber warrants and represents to Rightcheck that the Subscriber has the ability and experience to carry out the obligations assumed by the Subscriber under this Agreement and that by entering into the Agreement the Subscriber will not breach any express or implied obligation to any third party.
9 Liabilities and Indemnities
9.1 Each Party shall indemnify the other and keep the other fully and effectively indemnified against any loss of or damage to any property or injury to or death of any person caused by any negligent act or omission or wilful misconduct of it, its employees, agents, sub-contractors, or by any breach of its contractual obligations arising out of or relating to this Agreement.
9.2 Except in respect of injury to or death of any person (for which no limit applies) the respective liability of either Party to the other Party under the Agreement in respect of each event or series of connected events shall not exceed one hundred per cent (100%) of the total Fees paid by the Subscriber to Rightcheck under this Agreement during the period of twelve (12) calendar months preceding the event giving rise to such liability occurred.
9.3 Rightcheck will not be liable to the Subscriber or any other third party for any loss or damage arising out of or relating to the Agreement whether caused by any breach of contract or any negligence by Rightcheck or otherwise, to the extent that such loss or damage is indirect, consequential or special, whether or not Rightcheck have been advised of the possibility of such loss or damage.
9.4 Rightcheck will not be liable to the Subscriber or any third party for any loss or damage arising out of or relating to the Agreement to the extent that such loss or damage is:
9.4.1 a loss of profits; or
9.4.2 a loss of data, whether or not Rightcheck has been advised of the possibility of such loss or damage. For the avoidance of doubt, the provisions of Clauses 9.4.1 and 9.4.2 shall each be construed as a separate exclusion of liability.
10 Intellectual Property Rights Indemnities
10.1 Rightcheck shall indemnify the Subscriber against any claim that the normal use or possession of the Software, Documentation or Rightcheck Trade Marks in accordance with the Agreement infringes the Intellectual Property Rights of any third party in the United Kingdom, provided that:-
10.1.1 the Subscriber does not prejudice Rightcheck's defence of such a claim;
10.1.2 such infringement is not caused by or contributed to by the Subscriber's or any other third party's acts or omissions, other than the use of the Software in accordance with the terms of this Agreement;
10.1.3 Rightcheck is promptly notified in writing of the details of the claim;
10.1.4 the Subscriber gives Rightcheck all reasonable assistance with such claim; and
10.1.5 Rightcheck has sole conduct and control of the claim and its settlement or resolution.
10.2 Rightcheck may at Rightcheck's own expense modify or replace all or part of the Software or Documentation so as to avoid infringement or claim of infringement.
10.3 Rightcheck shall have no liability for any claim of infringement based on the Subscriber's:
10.3.1 use, of the Software or Documentation other than in accordance with the Agreement; or
10.3.2 failure to install any Updates immediately on notification of the relevant Update; or
10.3.3 refusal to use modified or replaced Software or Documentation supplied or offered to be supplied pursuant to Clause 10.2.
10.4 This Clause 10 states Rightcheck's entire liability with respect to infringement or alleged infringement of any third party rights of any kind whatsoever by the Software or Documentation.
11.1 Rightcheck may from time to time issue the Subscriber with further Updates as part of the Support Services.
11.2 The Subscriber must install any Update immediately on receipt or notification of the relevant Update.
11.3 Once installed, Updates shall be deemed to be part of the Software and the Documentation (as appropriate).
11.4 Rightcheck shall not be liable for any failure of the Software to operate in accordance with this Agreement or to otherwise meet any warranties or representations set out in this Agreement unless the Subscriber has installed all relevant Updates pursuant to Clause 11.1.
12 Support Services
12.1 Rightcheck will provide the Subscriber with an online support service for support between the hours of 0900 and 1700, UK time, Monday to Friday excluding English Bank holidays and Public holidays (“Working Day”).
12.2 All queries made by the Subscriber to the online support service must be channelled through employees of the Subscriber that have been appropriately trained in the use of the Software.
12.3 Rightcheck shall only provide Support Services in respect of Software that has been fully Updated in accordance with Clause 11.
12.4 The Support Services do not include training on use of the Software, on-site attendance by Rightcheck, installation of any software or hardware, system design, consulting, software development or the modification, deletion or recovery of data. If the Subscriber requires any such services they will be the subject of a separate written agreement between the Parties.
12.5 The cost of any Support Services supplied by Rightcheck which result in the following circumstances will be invoiced to the Subscriber at Rightcheck's current rates from time to time in force:-
12.5.1 neglect, abuse or misuse of the Software or Documentation by the Subscriber;
12.5.2 use by the Subscriber of software or other components not supported by Rightcheck;
12.5.3 the Subscriber's improper installation of the Software or any Upgrade; or
12.5.4 the Subscriber's failure to comply with any of the Subscriber's obligations under this Agreement.
12.6 The Subscriber agrees to carry out tasks as reasonably requested by Rightcheck in the provision of the Support Services.
13.1 Either Party may terminate the Agreement:-
13.1.1 immediately if the other Party is in material breach of any of its obligations under this Agreement and such breach is not remedied within ninety (90) days of that Party's receipt of notice of such breach from the terminating Party; or
13.1.2 immediately on giving the other Party written notice if the other Party commits any act of insolvency or bankruptcy.
13.2 Rightcheck may terminate the Agreement at any time on thirty (30) days' written notice in the event that the operation of the Agreement may not be lawful in any jurisdiction relevant to either Party or would, if performed in some other jurisdiction, be unlawful as a result of either:
(a) any law or regulation, as applicable from time to time; or
(b) a legal decision or public policy direction by the government in any relevant jurisdiction, including without limitation the United States of America (for example under the Sarbanes-Oxley Act 2002); or
13.3 Any termination of this Agreement shall be without prejudice to any other rights or remedies either party may be entitled to under this Agreement or at law and shall not affect any accrued rights or liabilities of either party nor the coming into or continuance in force of any provision in this Agreement which is expressly or by implication intended to come into or continue in force on or after such termination.
14 Post Termination
14.1 On termination of the Agreement howsoever caused, the Subscriber:
14.1.1 undertakes immediately to cease to use the Software and the Documentation and at Rightcheck's discretion either immediately to return to Rightcheck the Software and Documentation and all copies thereof or to delete, destroy or otherwise make permanently unusable the Software and Documentation and all such copies (whether whole or partial) and within thirty (30) days of the date of termination, to certify to Rightcheck in writing full compliance with this Clause; and
14.2 Termination of the Agreement however caused shall not affect the rights of either Party under the Agreement which may have accrued up to the date of termination, in particular the Subscriber's obligation to make any payments due to Rightcheck under the Agreement. The provisions of Clauses 4, 5, 9, 10, 14 and 21 shall survive termination of the Agreement.
14.3 For the avoidance of doubt, termination of the Agreement shall also terminate the provision of any Support Services provided under the Agreement.
14.4 Upon termination of the Agreement by Rightcheck pursuant to Clause 13.2 or by the Subscriber pursuant to Clause 13.1.1 or 13.1.2, Rightcheck shall refund to the Subscriber a sum which in Rightcheck's view represents that proportion of the Fees which are attributable to the period between the date of termination and the date upon which the next payment of the Fees would have been due had the Agreement not been so terminated.
15 Force Majeure
Neither Party shall be liable for any delay in performing or failure to perform any of its obligations (other than a payment obligation) under the Agreement due to any cause outside its reasonable control. Subject to giving the other Party notice of the circumstances in question and to using its reasonable endeavours to resume full performance, such delay or failure shall not constitute a breach of this Agreement by the Party affected and the time for performance of the affected obligation shall be extended by such period as is reasonable.
The 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. The rights and remedies provided by this Agreement are cumulative and (subject as otherwise provided in this Agreement) are not exclusive of any rights or remedies provided by law. A waiver of a breach of any of the terms of this Agreement or of a default under this Agreement does not constitute a waiver of any other breach or default, shall not affect the other terms of this Agreement and will not prevent a Party from subsequently requiring compliance with the waived obligation.
17 Entire Agreement and Enforceability
17.1 This Agreement constitutes the entire agreement between the Parties and supersedes all prior agreements, arrangements and understandings between the Parties whether oral or written relating to the subject matter hereof (other than representations made fraudulently). No addition, modification or amendment to the Agreement will be binding unless made in writing and executed by a duly authorised representative of each of the Parties.
17.2 If any provision of the Agreement is found by a court of competent jurisdiction to be invalid, unenforceable or illegal in whole or in part for any reason such decision shall not affect the validity, enforceability or legality of the remaining provisions hereof and this Agreement will be construed as if such invalid, illegal or unenforceable provision was not a part of this Agreement.
Rightcheck may assign all or any of Rightcheck's rights or obligations under this Agreement without the Subscriber's prior written consent. This Agreement is personal to the Subscriber and, save as permitted in this Agreement, the Subscriber shall not assign, sub-contract, sub-licence or charge or part with any of the Subscriber's rights or obligations under the Agreement without Rightcheck's prior written consent.
Nothing in the Agreement shall render the Parties partners or agents and neither shall purport to undertake any obligation on the other's part or expose the other to any liability whatsoever.
20 Rights of Third Parties
A person who is not a Party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce, or to enjoy the benefit of any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available apart from that Act.
21 Governing Law
This Agreement shall be governed by and construed in accordance with the laws of England and the Parties agree to submit to the jurisdiction of the English Courts.