The “Platform” is an online platform which helps companies embed diversity and inclusion across the business, using evidence, data and behavioural science.
The Platform is operated by Fair HQ Limited of 20-22 Wenlock Road, London, England, N1 7GU (“Fair HQ”).
Support is provided by Diversity.VC Limited of 84a Victoria Road, Horley, Surrey, England, RH6 7AB (“Diversity.VC”).
It is a condition precedent of this Agreement that the Employer has a valid agreement with Diversity.VC. Subject to compliance with the terms and conditions of both Agreements, the Employer and its Users are granted a limited, non-exclusive and revocable license to access and use the Platform.
The following definitions apply in this document:
The Platform means the business diversity and inclusion platform made available to the Employer and its Users on and subject to the terms of this Agreement.
Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation customer data, all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;all business and marketing plans and projections, details of agreements and arrangements with third parties, and User and supplier information and lists; all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays; all information concerning any employee, customer, contractor, supplier or agent of the relevant party; the party’s policies and procedures, but excludes information that the other party can establish is known by or is in the other party’s possession or control other than through a breach of this Agreement and is not subject to any obligation of confidence; or is in the public domain other than by a breach of this document or any obligations of confidence.; or is independently developed by or on behalf of the receiving party without reference to or use of the disclosing party’s Confidential Information.
Employer Data means any information that the Employer or any of its Users uploads to the Platform or otherwise provides to Fair HQ, including Employer Personal Data.
Employer Personal Data means any Personal Data that the Employer or any of its Users uploads to the Platform or otherwise provides to Fair HQ.
Data Protection Legislation means Regulation (EU) 2016/679 of the European Parliament and of the Council, (the General Data Protection Regulation); any other existing or future law, directive or regulation (anywhere in the world) relating to the Processing of Personal Data or privacy, to which Fair HQ is subject.
Data Controller, Data Processor, Data Subject, Processing and Personal Data have the meanings given to those expressions or any equivalent or corresponding expressions in the Data Protection Legislation.
Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure. It includes each of the following, to the extent it is beyond the reasonable control of that party: act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions;act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic or pandemic; the effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.
Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;
Intellectual Property Rights means, for the duration of the rights in any part of the world, industrial or intellectual property rights, whether registrable or not, including in respect of Intellectual Property, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.
Standard Contractual Clauses means the standard contractual clauses for the transfer of personal data from the EU to third countries (controller-to-processor transfers) contained in the Annex to the Commission Decision of 5 February 2010 (Decision 2010/87/EU) amending Decision 2002/16/EC as regards the introduction of an alternative set of standard contractual clauses for the transfer of personal data to third countries.
User means any individual authorised by the Employer to use an account or complete a survey on the Platform.
2. The Platform
- The Employer agrees and accepts that the Platform is hosted online by Fair HQ and its infrastructure providers, and is not available locally from the Employer’s systems. The Employer also acknowledges that Platform is managed by Fair HQ and supported by Diversity.VC.
- Fair HQ reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter the Platform at its sole discretion. Fair HQ shall not amend the Platform in a manner that would intentionally cause the Employer to lose access to Employer Data or fundamentally decrease the utility of the Platform to the Employer, other than in accordance with the terms of this Agreement.
3. Payment of fees
- Access to the Platform is provided as part of the Employer’s agreement with Diversity.VC. The Employer shall pay the fees notified to it by Diversity.VC.
- Access to the Platform may be modified, suspended or withheld for all Users if the agreement lapses or payment terms are not met.
- The Employer shall have no right of set off for any liability it may claim to be owed to it by Fair HQ at any time.
4. Use of the Platform
- The Employer shall only permit access to the Platform to the number of Users for which it has notified to Fair HQ. Platform access details (including the unique web link provided to each User by Fair HQ for accessing the Platform) must not be shared between Users, and must only be used by one specific User.
- Fair HQ may revoke or suspend access to the Platform at any time if the Employer or any User is in breach of this Agreement or any User terms of service, and has failed to comply with Fair HQ’s reasonable request to remedy such breach within a reasonable time period.
- The Employer agrees that it shall only use the Platform for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by Fair HQ in its sole discretion.
- The Employer acknowledges that Fair HQ may publish anonymous or aggregated versions of the D&I Reports on its website (and elsewhere) that do not identify the Employer, provided that no Employer Confidential Information (or D&I Reports that identify the Employer) shall be published by Fair HQ without the Employer’s prior consent.
5. Employer Data
- Fair HQ obtains no right, title or interest in Employer Data including any Intellectual Property found within it. The Employer grants Fair HQ a licence to use the Employer Data solely for the purposes of providing the Platform in accordance with this Agreement.
- Fair HQ accepts no liability for the content of Employer Data.
- The Employer shall ensure that it has an appropriate legal basis (including consents where required by law) for uploading any Employer Data to the Platform or otherwise providing it to Fair HQ. The Employer hereby indemnifies Fair HQ in relation to any claims, losses, damages and costs that Fair HQ or its related parties may suffer as a result of any claim that Fair HQ’s possession or use of the Employer Data to provide the Platform in accordance with this Agreement infringes any applicable Data Protection Legislation or the Intellectual Property Rights of any third party.
- Fair HQ shall be entitled to permanently delete Employer Data where any outstanding payments due to Fair HQ by the Employer remain unpaid in accordance with the terms of this Agreement.
- The Employer acknowledges that it shall not have any right to access any Employer Data provided by the Users through the Platform, and that Fair HQ will only provide the Employer with anonymised and aggregated data in relation to the interaction between the Users and the Platform.
6. Compliance with data privacy laws
1. Fair HQ and the Employer will comply with all applicable requirements of the Data Protection Legislation.
2. The Employer acknowledges that Fair HQ acts as an independent data controller in relation to its use of the Employer Data to provide the Platform. However, to the extent that Fair HQ acts as a Data Processor of Employer Personal Data in the course of making the Platform available to the Employer, Fair HQ shall:
- Process the Employer Personal Data only in accordance with the written instructions of Employer from time to time unless required to do so by law and subject to notifying the Employer (save whereby law Fair HQ is prohibited from so notifying the Employer);
- take reasonable steps to ensure the reliability of its employees, staff, officers and agents who may have access to, or be involved in, the Processing of the Employer Personal Data and that such employees, staff, officers and agents only process the Employer Personal Data in accordance with this Agreement;
- ensure that Fair HQ personnel who have access to and/or Process the Employer Personal Data are obliged to keep it confidential or are under an appropriate statutory obligation of confidentiality;
- ensure that it has in place appropriate technical and organizational measures to protect against unauthorized or unlawful Processing of Employer Personal Data and against loss or destruction of, or damage to, Employer Personal Data, appropriate to the harm that might result from unauthorized or unlawful Processing or accidental loss, destruction or damage and the nature of the Employer Personal Data to be protected, having regard to the state of technological development and the cost of implementing any measures;
- notify Employer promptly of any Employer Personal Data breaches so that Employer can notify the supervisory authorities, as appropriate; Fair HQ shall take all such measures and actions as are necessary to remedy or mitigate the effects of the breach and shall keep the Employer informed of all developments in connection with the breach;
- conduct data protection impact assessments as appropriate;
- support Employer’s interaction with supervisory authorities or regulators where the data protection risk assessment indicates that there is a high risk to the Processing;
- at the written direction of Employer, delete or return Employer Personal Data and copies thereof to Employer on termination or expiry of this Agreement unless Fair HQ is required to store the Employer Personal Data by law or if such Employer Personal Data is retained only in backups which are inaccessible in normal use;
- maintain complete and accurate records and information to demonstrate its compliance with these data protection obligations and shall allow at reasonable times and from time to time to audit and review Fair HQ’s compliance with these data protection obligations and the Data Protection Legislation;
- inform Employer immediately if (in Fair HQ’s opinion) an instruction for the Processing of Employer Personal Data given by the Employer infringes Data Protection Legislation;
- only transfer or process Employer Personal Data outside the European Economic Area on the basis of the Standard Contractual Clauses, which the Employer hereby accepts as being a valid and appropriate basis for such transfers and processing;
- not subcontract any processing of the Employer Personal Data to a third party subprocessor unless that third party is subject to contractual obligations no less onerous than those provided in this Agreement in relation to the processing of the Employer Personal Data.
3. Fair HQ shall be entitled to make any reasonable amendment to this section 6 necessary to bring Fair HQ’s obligations in respect of the Processing of Personal Data into line with the Data Protection Legislation; or allow the Employer to comply with the Data Protection Legislation and the requirements and recommendations of any appropriate data protection supervisory authority or regulator.
- Fair HQ takes the security of the Platform and the privacy of its Employers and Users seriously. Fair HQ shall use industry-standard systems and processes to protect the security of Employer Data.
- The Employer agrees that its Users shall not do anything to prejudice the security or privacy of Fair HQ’s systems (and the systems of Fair HQ’s infrastructure providers) or the information on them.
- Fair HQ may limit the amount of data that the Employer stores in the Platform, and shall advise the Employer of any such limits from time to time. Employer Data that is stored in the Platform shall be stored according to accepted industry standards.
8. Intellectual Property
- The Employer shall not copy, alter, or use the Platform name without the prior written consent of Fair HQ.
- The Platform may incorporate software and other proprietary systems and Intellectual Property owned by Fair HQ or which Fair HQ has appropriate authority to use, and the Employer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.
- The Employer warrants that it shall not infringe on any third-party rights through the use of the Platform.
- The Employer agrees and accepts that the Platform is the Intellectual Property of Fair HQ and the Employer further warrants that by using the Platform the Employer and its Users will not:
- copy the Platform or the services that it provides for their own commercial purposes; and
- directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in the Platform or any documentation associated with it.
- All content (with the exception of Employer Data) remains the Intellectual Property of Fair HQ, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the Employer or any other party with respect to the Platform.
- Fair HQ hereby indemnifies the Employer in relation to any claims, losses, damages and costs that the Employer may suffer as a result of any claim that the Employer’s use of the Platform in accordance with this Agreement and any instructions provided by Fair HQ to the Employer infringes the Intellectual Property Rights of any third party. This indemnity shall not apply to any use of the Platform by the Employer or any User otherwise than in accordance with Fair HQ’s reasonable instructions.
- Fair HQ shall own the Intellectual Property Rights in any document generated using the Platform, and the Employer is hereby granted a limited licence to use any such documents for the purposes of publicising its workplace diversity and inclusion standards only.
1. Fair HQ agrees to keep all Employer Data in the strictest confidence, and to the extent Employer Data is accessed and/or received by the Platform it shall be deemed as Confidential Information for the purposes of this Agreement.
2. Each party acknowledges and agrees that:
- the Confidential Information is secret, confidential and valuable to the disclosing party (“Discloser”);
- it owes an obligation of confidence to the Discloser concerning the Confidential Information;
- it must not disclose the Confidential Information to a third party except as permitted in this Agreement;
- all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and
- any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy. Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.
3. A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:
- any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.
- any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or
- any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.
4. The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:
- any actual, suspected, likely or threatened breach of a term of this Agreement; or
- any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.
- Fair HQ warrants that the Platform will conform to all representations and descriptions of functionality and service made available to the Employer and that the Platform will be available in accordance with reasonable industry standards, excluding downtime for scheduled and emergency maintenance, which shall be notified in advance to Employer wherever possible, and scheduled to minimise disruption to Employer’s operations.
- Fair HQ warrants that it will use industry standard measures to maintain the security of the Platform as described in this Agreement, and that it will fix defects in the software in a prompt manner.
- Except as otherwise provided in this Agreement, the Employer acknowledges and agrees that the Platform (including all content, function, and services) is provided “as is,” without additional warranty of any kind, either express or implied, including any additional warranty for information, data, data processing services or uninterrupted access, any warranties concerning the availability, accuracy, completeness, usefulness, or content of information, and any warranties of title, non-infringement, merchantability or fitness for a particular purpose.
- Fair HQ does not warrant that the Platform (or the function, content or services made available within it) will be timely, secure, uninterrupted or error free. Fair HQ makes no warranty that the Platform will meet the Employer’s expectations or requirements. No advice, results or information, or data whether oral or written, obtained through the Platform shall create any warranty not expressly made herein. If the Employer is dissatisfied with the Platform, the sole remedy is to discontinue using the Platform.
- The Employer acknowledges that the Platform is hosted on third party infrastructure, and Fair HQ shall not be liable to Employer for any costs, losses, damages, downtime, or other liability arising from the use of or reliance upon such third party infrastructure.
- Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
11. Liability & Indemnity
- THE EMPLOYER AGREES THAT IT (AND ITS USERS) USE THE PLATFORM AT ITS OWN RISK.
- THE EMPLOYER ACKNOWLEDGES THAT FAIR HQ IS NOT RESPONSIBLE FOR THE CONDUCT OR ACTIVITIES OF ANY USER AND THAT FAIR HQ IS NOT LIABLE FOR SUCH UNDER ANY CIRCUMSTANCES.
- THE EMPLOYER AGREES TO INDEMNIFY FAIR HQ FOR ANY LOSS, DAMAGE, COST OR EXPENSE THAT FAIR HQ MAY SUFFER OR INCUR AS A RESULT OF OR IN CONNECTION WITH THE USE BY EMPLOYER OR ITS USERS OF THE PLATFORM OR CONDUCT IN CONNECTION WITH THE PLATFORM, INCLUDING ANY BREACH BY THE EMPLOYER OR ANY OF ITS USERS OF THIS AGREEMENT.
- EXCEPT AS REQUIRED BY LAW, FAIR HQ’S MAXIMUM LIABILITY TO THE EMPLOYER OR ANY USER IN RELATION TO THIS AGREEMENT SHALL NOT EXCEED THE FEES PAID IN THE TWELVE MONTHS PRECEDING THE DATE OF THE LIABILITY ARISING.
- IN NO CIRCUMSTANCES WILL FAIR HQ BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL OR INDIRECT DAMAGES, LOSS OR CORRUPTION OF DATA, LOSS OF PROFITS, GOODWILL, BARGAIN OR OPPORTUNITY, LOSS OF ANTICIPATED SAVINGS OR ANY OTHER SIMILAR OR ANALOGOUS LOSS RESULTING FROM THE EMPLOYER OR ANY USER’S ACCESS TO, OR USE OF, OR INABILITY TO USE THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT, NEGLIGENCE, IN EQUITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT FAIR HQ KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGE, TO BUSINESS INTERRUPTION OF ANY TYPE, WHETHER IN TORT, CONTRACT OR OTHERWISE.
1. This Agreement shall terminate:
- if Diversity.VC is no longer entitled to licence use of the Platform in accordance with this agreement; or,
- in the event that the Employer’s license for use is terminated by Diversity.VC.
2. Where a party is in material breach of this Agreement, and has failed to remedy such breach within 28 days of notification by the other party, the other party may terminate this Agreement by giving written notice of termination, which shall become effective 5 working days after the date of the notice.
3. Either party may terminate this Agreement immediately by notice, if either party:
- stops or suspends or threatens to stop or suspend payment of all or a class of its debts;
- is insolvent under company law;
- has an administrator appointed in respect of it;
- has an order made or a resolution passed for its winding up or dissolution or it enters into an arrangement, compromise or composition with or assignment for the benefit of its creditors or a class of them;
- has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or
- is subject to any event which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.
4. Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.
5. Rights and obligations under this Agreement shall survive termination of this Agreement where reasonably required to give commercial effect to such rights and obligations.
13. Force Majeure
1. If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly. The notice must:
- specify the obligations and the extent to which it cannot perform those obligations;
- fully describe the event of Force Majeure;
- estimate the time during which the Force Majeure will continue; and
- specify the measures proposed to be adopted to remedy or abate the Force Majeure.
2. Following a notice of Force Majeure in accordance with section 13.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.
3. The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.
4. The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.
5. The term of this Agreement will not be extended by the period of Force Majeure.
14. Governing Law & Jurisdiction
- This Agreement shall be governed by and construed and enforced in accordance with the laws of England and Wales.
- Each Party expressly agrees that exclusive jurisdiction for resolving any claim or dispute between the Employer and Fair HQ relating in any way to use of the Platform shall be with the courts of England and Wales.
15. Other provisions
- The Employer may not assign or otherwise license or transfer any of its rights and obligations under this Agreement.
- Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.
- The relationship of the parties to this Agreement does not form a joint venture or partnership.
- The Employer agrees that Fair HQ may reference the Employer’s use of the Platform in its promotional materials.
- No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.
- Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.
- Any part of this Agreement may be amended by Fair HQ at any time, and any aspect of the Platform service may be updated or discontinued at any time, provided that the core functionality of the software will not be varied in a way that materially affects the Employer’s use of the Platform. Any changes to this Agreement or to the Platform service which will significantly affect the rights and obligations of the Employer will be notified to the Employer in advance of such changes taking effect.
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