1. STRUCTURE OF THE AGREEMENT
The agreement consists of: (i) the Order Form; (ii) these Terms; (iii) Appendix 1 (Data Processing Agreement); (iv) applicable service descriptions (as available on the Website); and (v) any other document or instruction referred to in any of the aforementioned documents (collectively referred to as the “Agreement”). In case of any inconsistencies between the Agreement documents, the documents shall take precedence in the order presented in the above. Appendix 1, Data Processing Agreement, will however always take precedence over any other document forming part the Agreement in regards to any data processing activities.
“Customer” or “you” means the organization(s) you represent. You represent and warrant that you have the necessary authority to legally bind such organization(s). The expressions include your personal representatives, employees and agents using the Service.
“Customer Data” means all content, data or information processed and/or submitted directly or indirectly by Customer or on Customer’s behalf (with or without Customer’s permission) in relation to Customer’s use of the Service.
“Effective Date” means the date indicated in the Order Form.
“Hailey HR” means Hailey HR AB, reg.no. 559240-0682, Hornsbruksgatan 28, 117 34 Stockholm, Sweden.
”Malicious Code” means viruses, worms, time bombs, Trojan horses, and other harmful or malicious code, files, scripts, agents, or programs.
”Order Form” means document named Order Form signed by Customer and Hailey HR.
”Register” means Customer registration as a user of the Service through Customer’s signing of the Order Form.
”Service” means the online, web-based applications and platforms provided by Hailey HR from time to time via the Website, and/or other websites, as designated by Hailey HR from time to time, and as described in any applicable service description available on the Website.
”Service” means the subscription plan applicable for Customer’s subscription to the Service and as offered by Hailey HR from time to time on the Website.
”Third-Party Applications” means online, web-based applications and offline software products or services that are (a) provided by third parties, (b) interoperate with Hailey HR, and (c) may be either separate or conjoined with Hailey HR and whether or not such are indicated by Hailey HR as being third-party applications
”Website” means www.haileyhr.com
3.1 Subject to the fulfillment of Customer’s payment obligations hereunder and within the scope of the applicable usage restrictions, Customer are granted a restricted, non-exclusive and time limited right to use the Service in accordance with the terms of the Agreement.
3.2 Hailey HR shall provide the Service and Customer shall pay for the Service from the Effective Date in accordance with the applicable price for Customer’s Subscription Plan or in accordance with the Order Form (if applicable).
3.3 If Customer does not comply with the terms of the Agreement and does not rectify the non- compliance within ten (10) days of Hailey HR notifying Customer of the non-compliance, Hailey HR is entitled to suspend the Service until rectification is made. Customer shall indemnify and hold Hailey HR harmless from any costs or claims by a third party based on Customer’s use of the Service in violation of the Agreement or applicable law and Customer is obliged to pay all fees applicable during the suspension.
3.4 Hailey HR reserves the right to make improvements, additions and changes, or to remove functions of the Service at Hailey HR’s own discretion. If such modification removes a material function of the Service, Hailey HR undertakes to notify the Customer at least three (3) months in advance. If the Customer cannot reasonably accept the changes, Customer may terminate the Agreement with immediate effect and shall further be entitled to re-payment of any pre-paid fees for the remaining subscription period.
3.5 Hailey HR shall take commercially reasonable efforts to maintain the availability of the Service and the availability of the Service shall as an average during a month be 99,8%.
4. CUSTOMER’S USE OF THE SERVICE
4.1 Unless otherwise agreed, Customer is responsible for the following: a) to maintain the equipment, software and communication services required to use the Service; b) to provide required information to Hailey HR, review the actions of and make decisions that are necessary for Hailey HR to be able to provide the Service; and c) to promptly notify Hailey HR of any change at Customer’s end that may affect Hailey HR and/or the Service.
4.2 Customer is fully responsible for maintaining the security of Customer’s IT-environment, such as the operating environment, networks and applications. Customer is further always responsible for ensuring safe management of login details such as usernames and passwords for the Service and are always liable for any actions or omissions to act via Customer’s user account(s). For the avoidance of doubt, Hailey HR is not liable for Customer’s hardware and software being affected adversely by the use of the Service and does not warrant any compatibility with Customer’s hardware or software unless otherwise agreed.
4.3 Customer may not in any way attempt to reverse engineer, decompile or otherwise recreate the Service or let any third parties use the Service.
4.4 Customer is obliged to follow applicable user guidelines and usage restrictions and limitations set out in these Terms, service descriptions on the Website and/or any other written instructions from Hailey HR for the use of the Service. In the event Hailey HR issues usage restrictions, limitations or service descriptions which has a negative effect on Customer’s intended use of the Service and therefore cannot be reasonable accepted by the Customer, the Customer shall be entitled to terminate the Agreement and receive re-payment of any pre-paid fees for any remaining subscription term.
4.5 If Customer’s use of the Service jeopardizes the Service or other customers’ use of it, Hailey HR is at its own discretion entitled to suspend the Service until remedied by Customer, alternatively terminate the Agreement with immediate effect
4.6 Customer must in particular not: a) make the Service available to anyone else other than as permitted in these Terms; (b) sell, resell, rent or lease access to the Service; b) use the Service to store or transmit intellectual property rights infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of any third-party’s rights under applicable data protection law; c) use the Service to store or transmit Malicious Code; d) interfere with or disrupt the integrity or performance of the Service or any Third-Party Applications; or e) attempt to gain unauthorized access to the Service or thereto related systems or networks.
4.7 Additional usage restrictions may be included in applicable service descriptions on the Website.
4.8 Customer agrees not to access or attempt to access the Service using any portal, interface or means other than the interfaces and application programming interfaces provided by Hailey HR. Unless Hailey HR explicitly agreed otherwise, Customer agrees that Customer will not access or make use of the Service using automated means (including the use of scripts and web crawlers).
4.9 Customer must keep Customer’s passwords and the user identification Customer uses to access the Service secure. Customer is solely responsible for all activities that occur in respect of Customer’s user account(s), whether such occur with Customer’s permission or not. If Customer becomes aware of unauthorized use of Customer’s user account, Customer must notify Hailey HR immediately.
5. THIRD-PARTY APPLICATIONS
Customer acknowledges that Hailey HR may allow providers of Third-Party Applications to access Customer Data as required for the interoperation of those Third-Party Applications with the Service, without prejudice to Appendix 1, Data Processing Agreement, provided that the Customer has ordered or otherwise accepted the use of the Third-Party Applications.
6. PRICES AND PAYMENT
6.1 The prices applicable from time to time for the Service and the currencies in which Hailey HR accepts payment can be found at the Website, unless specifically agreed in the Order Form. All prices are exclusive of applicable VAT.
6.2 Unless specifically agreed upon Registration or indicated at the Website, the fees will be payable on a monthly basis in advance and payment shall be made by the means of payment offered by Hailey HR from time to time. If payment is made by invoice, payment is due thirty (30) days from the invoice date. By paying for the Service by card, Customer authorises Hailey HR to automatically charge the Service fee on the final day of Customer’s current payment cycle.
6.3 If payment is late or incomplete, Hailey HR is entitled to interest on overdue payment in accordance with the Swedish Interest Act (1975:635), a reasonable late payment charge and/or a debt collection fee according to applicable laws.
6.4 In addition to any other available remedies under the Agreement, if full payment is not received within ten (10) days from the date a written payment reminder was sent by Hailey HR, Hailey HR may immediately suspend the Service, and/or terminate the Agreement with immediate effect pursuant to section 13.5.
7. INTELLECTUAL PROPERTY RIGHTS
7.1 Hailey HR and/or Hailey HR’s licensor(s) holds all rights, including all intellectual property rights, related to the Service and any therein included software and source code, including but not limited to patents, copyrights, database rights, design rights and trademarks. Nothing in this Agreement shall be interpreted as a transfer of such rights, or part thereof, to you. Should the Service in any way require Hailey HR’s use of intellectual property rights held by Customer or Customer’s licensor(s), Hailey HR is granted a license by Customer to utilise such intellectual property rights for said purpose for as long as the Service is provided to you. Customer agrees to hold Hailey HR harmless from any damages that may arise due to Hailey HR’s use of Customer’s or Customer’s licensor(s) intellectual property rights in accordance with this section 7.1.
7.2 Customer shall not have the right to remove or alter any proprietary markings of Hailey HR, or Hailey HR’s licensors, in the Service unless explicitly agreed between the Parties.
7.3 Hailey HR agrees to, at its own cost, defend Customer where claims are made or actions are brought against Customer for infringement and to indemnify, as set out under section 7.5, Customer from any claims by a third party based on Customer’s use of the Service, or part thereof, infringing any such third party’s intellectual property rights. Hailey HR’s obligations in accordance with this section 7 are subject to Customer only having used the Service in accordance with the conditions set forth in the Agreement and shall only apply for such claims by third parties in the country where Customer is established.
7.4 Hailey HR’s obligation to defend and indemnify under section 7 only applies provided that Customer: a) without undue delay notifies Hailey HR in writing of the claims brought against Customer; b) allows Hailey HR to control the defence and to solely decide in all related settlement negotiations; and c) acts in accordance with Hailey HR’s instructions and cooperate with and assist Hailey HR to the extent reasonably requested by Hailey HR.
7.5 Subject to the conditions under sections 7.3-7.4, Hailey HR shall, indemnify Customer for such third party claims, damages, liabilities, costs or expenses awarded in a final judgment or settlement which has been approved in writing by Hailey HR.
7.6 If it is finally determined that there is an infringement of a third party’s intellectual property rights for which Hailey HR is liable under these Terms, Hailey HR shall at its own discretion: a) procure Customer the right to continued use of the Service; b) modify the Service so that it does not longer infringe; c) replace the Service, or part thereof, with an equivalent service which does not infringe; or d) cancel the Service and repay the fees that Customer has paid for the Service without interest and with deduction of any reasonable benefit Customer might have had from the Service.
7.7 With respect to Third-Party Applications, Hailey HR’s liability for errors or intellectual property infringements is restricted to an obligation to report the fault/infringement to the relevant third party supplier immediately. Hailey HR shall implement any potential solution from the third party supplier, provided this can be done without negative interference with the Service.
7.8 Section 7 constitutes the entire obligation of Hailey HR towards Customer with respect to any infringement in a third party’s intellectual property rights.
7.9 Customer grants Hailey HR a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to use and/or incorporate into the Service or any other product of Hailey HR, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the operation of Hailey HR. The license include right to modify and further develop any of the aforesaid. Any sub-licensee shall have the corresponding rights, as decided by Hailey HR.
8.1 The Parties hereby agree not to, without the other party’s prior written approval, publish or otherwise disclose to a third party any information relating to the other party’s business which is or can be reasonably presumed to be confidential, including, for the avoidance of doubt, Customer Data, with the exemption for; a) information that is or becomes publicly known, except through a breach of this Agreement by the receiving party; b) information that is public to the receiving party from third party without obligation of confidentiality; c) information that was known to the receiving party prior to receipt from the disclosing party, without obligation of confidentiality; or d) the disclosure or use of information is required by law, regulations or any other regulatory body.
8.2 Information which a party has classified as confidential shall always be treated as confidential information.
8.3 Hailey HR will not modify or disclose Customer Data except where the Terms permit or require such disclosure nor will Hailey HR access any Customer Data, except as required to provide the Service, to prevent or address service or technical problems or at Customer’s request in connection with customer support matters.
8.4 Each party is liable for that their subcontractors, consultants and employees respect this confidentiality clause. The confidentiality obligation set forth in this section 8 shall remain in effect during the term of this Agreement and for a period of ten (10) years after the expiration of the Agreement, except as regards Customer Data, for which no limitation in time shall apply.
9.1 Hailey HR is entitled to make changes and amendments to the Agreement. Hailey HR shall notify Customer of any changes or amendments no less than thirty (30) days in advance. If Customer does not accept the changes or amendments, Customer shall be entitled to terminate the Agreement with immediate effect. If Customer does not notify Hailey HR within the thirty (30) day period above that Customer does not accept the changes or amendments, Customer is deemed to have accepted the changes or amendments from the effective date of the same.
10. PERSONAL DATA
Customer acknowledges that Customer is the data controller for any personal data processed by Hailey HR on behalf of Customer in relation to the Service and that Hailey HR is the data processor of such data. Hailey HR’s processing of personal data is further detailed in the Data Processing Agreement (Appendix 1), which shall remain effective independently of the Agreement otherwise for as long as Hailey HR processes personal data on behalf of Customer.
11.1 Hailey HR is, with the limitations set out below, liable towards Customer for damages caused by Hailey HR’s negligence, regardless of what legal ground Customer uses for such claim.
11.2 Hailey HR is not liable for damage caused by modifications or changes to the Service made according to Customer’s instructions (including but not limited to changes made by Customer or on Customer’s behalf).
11.3 Neither Party shall, under any circumstances, be liable for the other Party’s loss of profit, revenue, savings, or goodwill, loss due to operational, power or network interruptions, Customer’s potential liability towards a third party or indirect or consequential damages of any kind, without prejudice to section 7.3 above and the Data Processing Agreement.
11.4 Hailey HR´s total and aggregate liability under the Agreement is, for each calendar year and regardless of the number of damages and without prejudice to section 7.3 and the Data Processing Agreement, limited to the fees paid by Customer during the 24 month period prior to the time when the damage(s) occurred, or, in case the Agreement has been in force for a shorter period, the fees that Customer should have paid if the Agreement had been in force for the 24 months. If Customer uses the Service under a trial or otherwise free subscription, Hailey HR’s aggregate liability, regardless of the number of damages, is limited to SEK 1000. Hailey HR’s liability for Third-Party Applications will never exceed such amount that Hailey HR is entitled to recover from the provider(s) of such Third-Party Application.
11.5 Hailey HR is not liable for damages unless Customer notifies Hailey HR in writing thereof no later than ninety (90) days after Customer noticed or should have noticed, the actual damage or loss, however no later than six (6) months from when the damage occurred.
11.6 The limitations set out in the Agreement shall not apply in relation to a loss or damage caused by gross negligence, intentional acts or breaches against the confidentiality undertakings int this Agreement.
12. FORCE MAJEURE
Each party shall be relieved from liability for damages for a failure to perform any obligation under this Agreement to the extent that the due performance is prevented by reason of any circumstance beyond the control of the party and which could neither reasonably been foreseen by that Party, such as stroke of legal enactment, labour disputes, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, loss of communication or electricity, mobilisation or military call-up by larger scope, government regulations, restrictions on fuel, goods or energy as well as errors or delays in deliveries from subcontractors caused by any such circumstances referred to in this section 12. All subject to that the other party is immediately notified of the relieving circumstance.
13. TERM AND TERMINATION
13.1 The Service is provided on a subscription basis. Unless otherwise specifically agreed in the Order Form, Customer’s subscription will automatically renew on the final day of Customer’s current payment cycle.
13.2 Either party may terminate the Agreement with effect from the date when Customer’s subscription would otherwise have been renewed, subject to such termination being made before the renewal date.
13.3 Customer shall not be entitled to recover any excess amount of payments made in advance unless the Agreement is terminated by Hailey HR under section 13.1 or 13.5 a) or by Customer under section 3.4, 9.1 or 13.4.
13.4 Either party is entitled to terminate the Agreement with immediate effect where the other party has committed a material breach of the Agreement and does not fully rectify such breach within thirty (30) days of the other party giving written notice thereof or where the other party is declared insolvent, is subject of an application or order for bankruptcy or company reorganisation, suspends payments or otherwise can be presumed to be insolvent.
13.5 Hailey HR is entitled to terminate the Agreement with immediate effect where: a) a third party supplier or subcontractor terminates an agreement with Hailey HR and as a consequence it is not commercially reasonable for Hailey HR to continue providing the Service under the Agreement; or b) upon Customer’s breach of Customer’s obligation under section 6.4.
14. CONSEQUENCES OF TERMINATION
14.1 Upon termination of the Agreement (completely or partially) (i) Customer shall immediately cease Customer’s use of the Service, (ii) the Parties shall promptly return, destroy or delete confidential information and other material submitted by the party in accordance with the other party’s instructions, and (iii) each party shall cease all use of the other party´s intellectual property rights. If the termination only relates to a certain part of the Service, this section 14 shall apply only for the part of Service which has been terminated.
14.2 Upon prior written request made within 30 days after the termination of the Agreement or suspension of the Service, Hailey HR will allow Customer to retrieve Customer Data currently in Hailey HR’s possession through the Service in the format made available by Hailey HR from time to time. Subject to agreement between Customer and Hailey HR, Hailey HR may offer assistance in retrieving Customer Data. Such assistance will be charged on a time and material basis according to Hailey HR’s price list applicable from time to time. Hailey HR is entitled to request payment in advance in order to perform such Service. After such applicable period of time, Hailey HR will have no obligation to maintain or provide any of Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession, unless legally prohibited. For the avoidance of doubt, Hailey HR is not responsible for the extraction, or for any loss of data, decreased quality of the data, migration to other format or similar in connection with the extraction or data migration in accordance with Customer’s instructions.
14.3 The rights and obligations of the Parties set forth in this section 14 and sections 6, 7, 11 and 16, and any right or obligation of the Parties in this Agreement which, by its express terms or nature and context is intended to survive termination or expiration of this Agreement, will survive any such termination or expiration.
15.1 Hailey HR is entitled to engage subcontractors for the performance of its obligations under this Agreement. Hailey HR is responsible for the subcontractors’ work as for its own work.
15.2 The Agreement forms the Parties’ entire understanding of all the questions related to the Service. All written or oral representations or warranties prior to the Agreement are replaced by the Agreement.
15.3 The Agreement may not be assigned to a third party without the other party’s prior written approval. Hailey HR is however entitled to assign the Agreement to a third party in connection with a transfer of Hailey HR’s business or a part thereof and to companies within the same group as Hailey.
15.4 Customer undertake to save a copy of these Terms as well as any other documentation related to the Agreement. Hailey HR does not undertake to provide additional copies unless otherwise agreed.
16. GOVERNING LAW AND DISPUTES
16.1 This contract shall be governed by the substantive law of Sweden and be construed in accordance with Swedish law.
16.2 Any dispute, controversy or claim arising out of or in connection with this contract, or the breach, termination or invalidity thereof, shall be finally settled by arbitration administered by the Arbitration Institute of the Stockholm Chamber of Commerce (the “SCC”).
16.3 The Rules for Expedited Arbitrations shall apply, unless the SCC in its discretion determines, taking into account the complexity of the case, the amount in dispute and other circumstances, that the Arbitration Rules shall apply. In the latter case, the SCC shall also decide whether the Arbitral Tribunal shall be composed of one or three arbitrators.
16.4 The seat of arbitration shall be Stockholm, Sweden. The language to be used in the arbitral proceedings shall be English or Swedish.