“Agreement” means the Execution Page, Commercial Terms, these Terms and Conditions and the Schedule (as amended from time to time in accordance with this Agreement);
“Agreed Monthly Fee” has the meaning given to it in the Commercial Terms;
“Benefits” the benefits which are made available to Notified Employees through the Website;
“Benefit Providers” means the providers of the benefits, which are made available to the Client and Notified Employees through the Website;
(a) the Agreed Monthly Fee;
(b) the relevant charges for the Services;
(c) together with any other charges incurred by OpenMoney in accordance with the terms of this Agreement;
with each of (a) to (c) being as amended from time to time in accordance with this Agreement;
“Client Name” the name, brand, logo and trademarks of the Client;
"Confidential Information" means all confidential information (however recorded or preserved) disclosed by a party or its employees, officers, representatives or advisers (together its "Representatives") to the other party and that party's Representatives whether before or after the date of this Agreement including:
(a) any information that would be regarded as confidential by a reasonable business person relating to:
(i) the business, affairs, customers, employees, pricing, suppliers, or plans, intentions, or market opportunities of the disclosing party (or of any member of the group of companies or organisations to which the disclosing party belongs); and
(ii) the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party (or of any member of the group of companies or organisations to which the disclosing party belongs); and
(b) any information developed by the parties in the course of carrying out this Agreement;
"Data Controller" shall have the same meaning given to it in the Data Protection Legislation in force from time to time;
"Data Processor" shall have the same meaning given to it in the Data Protection Legislation in force from time to time;
"Data Protection Legislation" the Data Protection Act 2018, the General Data Protection Regulation (2016/679) (GDPR) the Regulation of Investigatory Powers Act 2000, the Telecommunications (Lawful Business Practice) (Interception of Communications) Regulations 2000 (SI 2000/2699), the Electronic Communications Data Protection Directive 2002/58/EC, the Privacy and Electronic Communications (EC Directive) Regulations 2003 and all applicable laws and regulations relating to processing of personal data and privacy which apply to a party, including where applicable the guidance and codes of practice issued by the Information Commissioner’s Office;
"Data Subject" shall have the same meaning as given to it in the Data Protection Legislation in force from time to time;
"IPR" means patents, rights in designs, trade marks, trading, business names, trade names or domain names and e-mail addresses, copyrights (including any such rights in typographical arrangements, web sites or software) whether registered or not and any applications to register or rights to apply for registration of any of the foregoing, rights in inventions, know-how, trade secrets and other confidential information, rights in databases, moral rights and all other intellectual property rights of a similar or corresponding character which subsist now or in the future worldwide, rights in the nature of unfair competition rights and rights to sue for passing off;
“Notified Employees" means the number of employees as uploaded by the Client on a monthly basis that are licensed to use the Website under the terms of this Agreement;
"Personal Data" shall have the same meaning given to it in the Data Protection Legislation in force from time to time;
"Process" has the meaning given to it under the Data Protection Legislation in force from time to time. References to “Processing” and “Processes” shall be construed accordingly;
"Services" means the services identified in the Commercial Terms (as amended from time to time in accordance with this Agreement);
“Software” means all software used by OpenMoney in the creation of the Website, the online software applications provided by OpenMoney as part of the Services;
"Staff" means all persons employed by us to perform our obligations under the agreement together with our servants, agents, suppliers and sub-contractors used in the performance of its obligations under this Agreement;
“Subscription Start Date” means the subscription start date specified in the Commercial Terms;
“Website” the online system which gives the Client access to the Services;
“Virus” any thing or device (including any software, code, file or programme) which may prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices;
"Working Day" means any day from Monday to Friday (inclusive) which is not Christmas Day, Good Friday or a public holiday.
(a) an applicable law, a statute or any regulation made pursuant thereto or to any of its or their provisions is to be construed as a reference to that law, statute or regulation or to such provision as the same may have been or may from time to time hereafter be amended or re-enacted;
(b) words importing persons shall include firms, companies and bodies corporate and vice versa;
(c) words importing the singular shall include the plural and vice versa;
(d) references to a clause, schedule, paragraph or appendix are references to the clause, schedule, paragraph or appendix of or to this Agreement;
(e) "includes" or "including" means includes or including but without limitation.
2.4.1 attempt to copy, modify, duplicate, create derivative works, transmit, reverse engineer all or any portion of the Software and/or the Website in any form or by any means;
2.4.2 access or use all or part of the Website to provide service to third parties; or
2.4.3 licence, sell, rent, lease, transfer, distribute or otherwise commercially exploit or make available the Website to any third parties.
2.6.1 any Virus; or
2.6.2 any material that is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive; facilitates illegal activity; depicts sexually explicit images; or promotes unlawful violence, discrimination based on race, gender, colour, religious belief, sexual orientation, disability, or any other illegal activities.
3.1.1 provide the Services with due care and skill;
3.1.2 provide the Services in compliance with all applicable UK laws;
3.1.4 be entitled to (but is not obliged to) monitor usage of the Website and remove any material posted by a Notified Employee which OpenMoney considers to be defamatory, obscene, offensive or otherwise unlawful.
3.2 OpenMoney will use all commercially reasonable efforts to keep the Website free from Viruses and to ensure its availability for use 24 hours a day, 7 days a week (apart from scheduled downtime notified to the Client in advance or emergency downtime). However, the Client acknowledges that on-line access to any Website cannot be expected to be uninterrupted or fault free and that speed and reliability of access may vary in accordance, for example, with user demand for the web-site and the Internet generally.
4.1.1 provide OpenMoney will all necessary access to such information as may be required by OpenMoney in order to provide the Services;
4.1.2 carry out all Client responsibilities set out in this Agreement in a timely and efficient manner;
4.1.3 upload any leavers and joiners for the Services;
4.1.4 assist OpenMoney to promote the Website and/or Services to the Notified Employees in accordance with a mutually agreed communication programme;
4.1.5 without affecting its other obligations under this Agreement, comply with all applicable laws and regulations with respect to its activities under this Agreement; and
4.1.6 carry out all other Client responsibilities set out in this Agreement in a timely and efficient manner.
4.3.1 compliance with:
(a) all applicable laws, enactments, orders, guidance and regulations;
(b) all applicable guidance or changes made by HMRC;
(c) all applicable guidance issued by any regulatory authority,
relating to or affecting any of the Benefits or the Notified Employees; and
4.3.2 the application of the Benefits to Notified Employees and the eligibility of the Notified Employees to the Benefits.
5.1.1 either party notifies the other party of termination in writing at least 30 Working Days before the end of any Subscription Period, in which case this Agreement shall terminate upon the expiry of the applicable Subscription Period; or
5.1.2 otherwise terminated in accordance with the provisions of this Agreement.
5.2.1 is unable to pay its debts or becomes insolvent;
5.2.2 is the subject of any order made or a resolution passed for the administration, winding-up or dissolution (otherwise for the purpose of a solvent amalgamation or reconstruction);
5.2.3 has an administrative or other receiver, manager, trustee, liquidator, administrator or similar officer appointed over all or any substantial part of its assets;
5.2.4 enters into or proposes any composition or arrangement with its creditors generally; or
5.2.5 is the subject of any events or circumstances analogous to the foregoing in any applicable jurisdiction.
6.1.1 the licence to use the Website shall immediately terminate;
6.1.2 all provisions which are, expressly or impliedly, to survive this Agreement shall remain in force and in effect;
6.1.3 OpenMoney shall provide the Client on request with a full copy of all of the Client data on the Website in an industry standard file format (such as CSV, XLS etc.) as soon as reasonably practicable following receipt of such request;
6.1.4 any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the Agreement which existed at or before the date of termination shall not be affected or prejudiced.
7.4.1 it has all necessary appropriate consents and notices in place to enable the lawful transfer of Personal Data and its Processing by OpenMoney and/or the lawful collection of any Personal Data by OpenMoney on the Client’s behalf;
7.4.2 the Personal Data is accurate and up-to-date and remains so during the period of Processing; and
7.4.3 it does not do anything in connection with the Personal Data that would or might cause OpenMoney to be in breach of any Data Protection Legislation and/or to incur liability to any Data Subject.
7.5.1 Process the Personal Data in accordance with the instructions of the Client (as set out in this Agreement) and to the extent necessary to perform the Services and its obligations under this Agreement, unless OpenMoney is required by applicable law to otherwise Process that Personal Data and in which case, OpenMoney will promptly notify the Client of this before performing the Processing required by applicable law, unless such applicable law prohibits OpenMoney from doing so;
7.5.2 implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful Processing and against accidental loss, destruction, damage, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorised or unlawful Processing, accidental loss, destruction or damage to the Personal Data and having regard to the nature of the Personal Data which is to be protected, and shall include all measures that may be required to ensure compliance with Article 32 of GDPR;
7.5.3 ensure that all Staff required to access the Personal Data are informed of the confidential nature of the Personal Data and are required to treat Personal Data confidentially;
7.5.4 notify the Client (within five Working Days), if OpenMoney receives:
(a) a request from a Data Subject exercising their rights under Data Protection Legislation with respect to their Personal Data; or
(b) a complaint or request relating to the Client’s obligations under the Data Protection Legislation;
7.5.5 taking into account the nature of the Processing, assist the Client to enable the Client to fulfil its obligations to respond to requests from individuals exercising their rights under Data Protection Legislation;
7.5.6 taking into account the nature of the Processing and the information available to OpenMoney, assist the Client in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities, provided that the scope of such assistance shall be agreed by the parties in advance and the Client will pay the reasonable costs of OpenMoney incurred in providing such assistance;
7.5.7 notify the Client without undue delay on becoming aware of a personal data breach (having the meaning given to it in the Data Protection Legislation);
7.5.8 upon reasonable request with not less than 4 weeks' notice, and provided that the Client will not make more than one request in any rolling 12 month period:
(a) make available all information necessary to demonstrate compliance with the obligations set out in clauses 7.5 - 7.7 (inclusive); and
(b) allow for and contribute to audits, including inspections, conducted by the Client or on its behalf,
and in each case, OpenMoney will inform the Client if it considers that an instruction infringes the Data Protection Legislation;
7.5.9 not transfer any Personal Data outside of the European Economic Area unless the following conditions are fulfilled:
(a) OpenMoney will put in place and maintain appropriate safeguards in relation to the transfer;
(b) the Data Subject has enforceable rights and effective legal remedies;
(c) OpenMoney complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
(d) OpenMoney complies with any reasonable instructions notified to it in advance by the Client with respect to the Processing of the Personal Data; and
7.5.10 at the written direction of the Client, delete or return Personal Data and copies thereof to the Client on termination of the Agreement unless OpenMoney is required by applicable law to store the Personal Data.
9.1.1 the content or use of any Benefit Provider’s website;
9.1.2 any correspondence between the Client or any Employee and any Benefit Provider;
9.1.3 any transactions completed, and any contract entered into by the Client or any Employee with any Benefit Provider;
9.1.4 any benefits, goods or services obtained by the Client or any Employee from any Benefit Provider;
9.1.5 any claims and actions relating to any benefits, products or services purchased from, or offers made by, such third parties;
9.1.6 any acts or omissions of any Benefit Provider or any failure by any Benefit Provider to comply with its obligations to the Client or any of the Notified Employees.
10.1.1 OpenMoney’s expertise lies in the provision of employee benefit management services and that OpenMoney’s staff, employees and consultants are not qualified to provide professional tax, legal or financial services advice and that OpenMoney is not authorised to provide advice in relation to regulated financial products and services; and
10.1.2 the Client should take advice from an appropriately qualified tax and/or legal and/or financial services adviser to satisfy itself that the Services are appropriate with regards to the Client’s circumstances and requirements.
10.2.1 the accuracy of prices or other information relating to third party goods or services published or disseminated which are included in the Services (on a Website or otherwise); and
10.2.2 ensuring that the goods and services provided (and to be provided) by the Benefit Providers are appropriate for the Client and the Notified Employees;
10.2.3 the quality or availability of any third-party goods or services promoted pursuant to the Services;
10.2.4 the compliance by any third party with, and any liability under, any contract concluded between the Client or Employee and a Benefit Provider (and the Client acknowledges that OpenMoney are not a party to, third party beneficiary of or a guarantor of performance under any such contract).
11.2.1 death or personal injury caused by its negligence or that of its employees, agents or subcontractors;
11.2.2 fraud or fraudulent misrepresentation; or
11.2.3 any other liability which cannot be excluded or limited by applicable law.
11.3.1 loss of profits, loss of business, loss of reputation, loss of anticipated savings, loss of goods, loss of contract, loss of use in each case whether direct, indirect or consequential;
11.3.2 any other type of special, indirect or consequential loss even if the loss was reasonably foreseeable or which the Client has advised OpenMoney of the possibility of the Client incurring; and/or
11.3.3 any liability under clause 9 of this Agreement.
12.3.1 the Receiving Party is required to disclose such Confidential Information by law, regulation, code of practice or stock exchange or if reasonably necessary for due diligence purposes (provided the disclosure is subject to an obligation of confidence at least as stringent as this provision);
12.3.2 can demonstrate that such Confidential Information was lawfully in the possession of the Receiving Party at the time of the disclosure;
12.3.3 such Confidential Information becomes publicly available or generally known to the public at any time after such disclosure, except as a result of any breach by the Receiving Party of its obligations hereunder; or
12.3.4 the Receiving Party acquires or has acquired such Confidential Information free from any obligation of confidentiality from a third party who is not in breach of any obligation of confidentiality to either party.
13.1.1 for the Client, to the address and contact indicated in the Commercial Terms or such other address as notified to Open Money from time to time; and
13.1.2 for Open Money, to FAO: Open Money, Wework St Peter’s Square, 1 St Peter’s Square, Manchester, United Kingdom, M2 3DE, or such other address as notified to the Client from time to time.
13.2.1 if sent by email, be deemed to have been received at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume. In this clause 13.2, business hours means 9.00am to 5.00pm on a Working Day, and
13.2.2 if sent by first class post, special delivery or recorded delivery, on the second Working Day after it is posted.
Facilitating the provision of Benefits to Client’s Notified Employees
For OpenMoney to provide the Benefits chosen by the Notified Employee from the Website
For OpenMoney to perform its obligations under the Agreement, including to provide the Services to the Client
Name, date of birth, National Insurance number, address, health data
For the term of the Agreement and for a period of 1 year thereafter
Zest Technology Limited
St Peter's Square
1 St Peter's Square