On Accepting these terms I confirm that I am duly authorised on behalf of the Client to place an order for Breathe subject to the terms and conditions set out below. I also warrant that the information submitted in signing up is correct and accurate to the best of my knowledge.
A: PROPERTY OF CENTURION
FOLLOWING ACCEPTANCE YOU MAY ACCESS AND USE THE BREATHE SOFTWARE THROUGH OUR SERVER.THE COPYRIGHT, DATABASE RIGHTS AND ANY OTHER INTELLECTUAL PROPERTY RIGHTS IN THE PROGRAMS AND DATA WHICH CONSTITUTE THIS SOFTWARE PRODUCT ('THE MATERIALS'), ARE AND REMAIN THE PROPERTY OF CENTURION.
B: LICENCE ACCEPTANCE PROCEDURE
ON ACCEPTANCE YOU INDICATE AGREEMENT TO THIS END USER LICENCE AGREEMENT AND THE LIMITED WARRANTY AND LIMITATION OF LIABILITY SET OUT IN THIS END USER LICENCE AGREEMENT ON BEHALF OF ANY CORPORATE ENTITY WHICH EMPLOYS YOU OR WHICH YOU REPRESENT ('CLIENT'). IN THIS END USER LICENCE AGREEMENT, 'YOU' INCLUDES BOTH THE READER AND ANY CLIENT. YOU SHOULD THEREFORE READ THIS END USER LICENCE AGREEMENT CAREFULLY BEFORE ACCEPTING.
The following terms as used in this Agreement have the following meanings:
"Accept/Accepting/Acceptance" means (i) your placing a check in the box on our sign up form confirming that you accept these terms and (ii) clicking the ‘start using Breathe’ box which shall together constitute a binding contract between Centurion and the Client
"Breathe" means the online Human Resource service managed by Centurion and provided through the Website;
"Breathe Technology" means all the proprietary technology used in delivering the Service (including the software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to the Client by Centurion in providing the Service;
"Business Day" means a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business;
"Cancellation Period" means the period of 21 days starting on the Effective Date;
"Card Details" means valid credit or debit card details provided by the Client for payment of the Fees;
"Client" means the corporate entity or organisation ordering the Service(s);
"Client Data" means any data, information or material provided or submitted by the Client to the Service or generated by the Service in the course of using the Service including but not limited to employee data held in the Service;
"Content" means the documents, software, products and services contained or made available to the Client in the course of using the Service;
"Data Protection Legislation" means (i) unless and until the GDPR is no longer directly applicable in the UK, the General Data Protection Regulation ((EU) 2016/679) and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 1998.
"Defect" means an error in the operation of the Service that causes the Service to fail to operate substantially as documented;
"Effective Date" means the date the Accepting Individual Accepts on behalf of the Client to commence use of the Service;
"Fee(s)" means any and all fees charges or other payments due made from the Client to Centurion as provided by the Pricing Plan in force at the time the Fees become payable.
"Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
"License Administrator(s)" means those Users who are authorised to administer the Client use of the Service;
"License Term" means the period during which the Client is licensed to use the Service pursuant to this Agreement;
"Trial Period" means the initial period of 14 days from the Effective Date;
"Period" means the period of either (i) one calendar month or (ii) one year. Each such period shall begin on the day of the month (in the case of (i) above) or date of the year (in the case of (ii) above) on which the Client began paying for the Services. Such date shall be recorded in the administration pages of the Service.
"Pricing Plan" means the schedule of fees and billing terms currently in force which can be viewed at: https://www.breathehr.com/hr-software-prices/ . Centurion may replace the Pricing Plan on 30 days prior written notice (including by email or though the Administration pages in the Service) and for the avoidance of doubt such new Pricing Plan may increase the Fees payable and/or introduce new Fees.
"Service(s)" means the online Human Resource services developed, operated, and maintained by Centurion (and its licensors, where applicable), or ancillary online or offline products and services provided to the Client by Centurion, to which the Client is being granted access under this Agreement, including the Breathe Technology and the Content;
"User(s)" means the Client's employees, representatives, consultants, contractors or agents who are authorised to use the Service and have been supplied user identifications and passwords by the Client (or by Centurion at the Clients request);
"Website" means www.breathehr.com
TRIAL PERIOD AND DURATION
The Services will be provided free of charge for the Trial Period only. Thereafter the Client will:
failing which Centurion may immediately cease provision of the Services in accordance with clause "Termination Upon Expiration"
If the Client has provided Card Details to Centurion, or has been permitted to pay by direct debit, the Services shall continue to be provided for so long as the Fees are paid as aforesaid unless and until this Agreement is terminated in accordance with these terms and conditions.
With regard to any personal data input by or collected from the Client that may be stored or processed in the Breathe system, such data shall be stored and processed by Centurion in accordance with Data Protection Legislation. Note that because the Service is a hosted, online application, Centurion occasionally may need to notify all Users of the Service of important announcements regarding the operation of the Service.
PRIVACY & DATA PROCESSING
Centurion's processing policy in relation to the Client's use of the Service may be viewed here . The Processing Policy sets out the scope, nature and purpose of processing by Centurion, the duration of the processing and the types of personal data (as defined in the Data Protection Legislation, Personal Data) and categories of Data Subject. Centurion reserves the right to modify its processing policy in its reasonable discretion and in accordance with Data Protection Legislation from time to time.
Both parties shall comply with all applicable requirements of the Data Protection Legislation. This clause is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation. The parties acknowledge that for the purposes of the Data Protection Legislation, the Client is the data controller and Centurion is the data processor (where Data Controller and Data Processor have the meanings as defined in the Data Protection Legislation).
Without prejudice to the generality of the forgoing in this clause, the Client will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to Centurion for the duration and purposes of this agreement.
Without prejudice to the generality of the forgoing of this clause, Centurion shall, in relation to any Personal Data processed in connection with the performance by Centurion of its obligations under this agreement:
Centurion will not transfer any Personal Data outside of the European Economic Area or ask you for permission to do this.
The Client consents to Centurion appointing the following classes of third-party processors of Personal Data under this agreement:
Centurion confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause. As between the Client and Centurion, Centurion shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause.
Centurion may, at any time on not less than 30 days’ notice, revise this clause by replacing it with any applicable controller to processor standard clauses or similar terms forming part of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
WITHOUT PREJUDICE TO THE GENERALITY OF THE FOREGOING, IF THE CLIENT BECOMES A PAYING USER OF THE SERVICE, THE CLIENT AGREES THAT CENTURION CAN DISCLOSE THE FACT THAT THE CLIENT IS A PAYING USER OF THE SERVICE.
LICENSE GRANT & RESTRICTIONS
Centurion hereby grants the Client a non-exclusive, non-transferable, right to use the Service, solely for the Client's own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to the Client are reserved by Centurion and its licensors.
The Client may not access the Service if they are a direct competitor of Centurion, except with Centurion's prior written consent. In addition, the Client may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
The client shall not:
THE CLIENT'S RESPONSIBILITIES
The Client is responsible for all activity occurring under their User accounts and shall:
ACCOUNT INFORMATION AND DATA
Centurion does not own any of the Client Data. The Client, not Centurion, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data,
The Client shall indemnify and hold Centurion, its licensors and each such party's parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:
INTELLECTUAL PROPERTY OWNERSHIP
Centurion alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Breathe Technology and any content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by the Client or any other party relating to the Service. This Agreement is not a sale and does not convey to the Client any rights of ownership in or related to the Service, the Breathe Technology or the Intellectual Property Rights owned by Centurion. The Breathe name, the Breathe logo, and the product names associated with the Service are trademarks of Centurion or third parties, and no right or license is granted to use them.
FEES AND RENEWAL
If the Client wishes to continue with the Service after the Trial Period the Client must provide Card Details, or obtain the permission of Centurion to pay by direct debit. The provision of any such Card Details, either upon the Effective Date or subsequently, shall be the Client's authorisation to charge all Fees to those Card Details.
Centurion collects Fees in advance on the first day of the Period in relation to which Fees are being charged (or the next Business Day):
All payment obligations are non-cancellable and all amounts paid are non-refundable. The Client is responsible for paying for all Services ordered for the entire License Term. If the Client wishes to amend the number of employees with access to the Service the Client must make any such amendment through the Administration pages in the Service and any resulting adjustment to the Pricing Plan shall be reflected in the next Period.
Fees for other services will be charged on an as-quoted basis.
Centurion's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and the Client shall be responsible for payment of all such taxes, levies, or duties.
All pricing terms are confidential, and the Client agrees not to disclose them to any third party.
The Client warrants that it has provided Centurion with complete and accurate billing and contact information. The Client agrees to provide Centurion with updated information within 30 days of any change to it through the Client's Administration Page in the Service. If the contact information the Client has provided is false or fraudulent, Centurion reserves the right to terminate access to the Service in addition to any other legal remedies.
Breathe is only available to corporate entities or organisations and all billing will be in £ sterling.
If the Client believes their bill is incorrect they must notify Centurion in writing within 60 days of the date of the disputed invoice, following which Centurion shall assess whether any adjustment or credit is due.
NON-PAYMENT AND SUSPENSION
In addition to any other rights granted to Centurion herein, Centurion reserves the right to suspend or terminate this Agreement and the Client's access to the Service if their account falls into arrears. If any sum payable under this Agreement is not paid within 7 days after the due date or any payment is rejected revoked or refused then (without prejudice to the Company's other rights and remedies) Centurion reserves the right to suspend the provision of any Services being rendered and to delete all Client preferences and settings in relation to the Breathe system as set up for the Client and/or to charge interest on such sum on a day to day basis (as well after as before any judgment) from the date or last date for payment thereof to the date of actual payment (both dates inclusive) at the rate of 4 per cent above the base rate of National Westminster Bank plc from time to time in force compounded quarterly. Such interest shall be paid on demand by the Client.
Centurion reserves the right to impose a reconnection fee in the event the Client is suspended and thereafter requests access to the Service.
TERMINATION WITHIN CANCELLATION PERIOD
Centurion may at its sole discretion terminate this Agreement with immediate effect at any time before the expiry of the Cancellation Period.
Centurion shall not be obliged to give notice of such termination to the Client, but may do so at its sole discretion in any form.
TERMINATION UPON EXPIRATION
This Agreement will automatically expire at the end of the Trial Period unless the Client has provided Card Details or obtained Centurion’s permission to pay by direct debit.
TERMINATION BY NOTICE
If the Client selects the cancellation option within the Administration pages in the Service this Agreement will terminate immediately.
Centurion may terminate this Agreement if Centurion decides to withdraw the Service (whether on a temporary or permanent basis) or decides to no longer permit access to the Service by the Client (by use of passwords or changes of passwords or by any other means). No refunds shall be due in cases in which Clients have paid for but not received Services.
TERMINATION FOR CAUSE
Centurion may terminate this Agreement if the Client commits any material breach of any of the terms of this Agreement and (if such a breach is remediable) fails to remedy that breach within 30 days of being notified of the breach. Without limit to the generality of the foregoing any breach of the Client's payment obligations or unauthorised use of the Breathe Technology or Service will be deemed a material and irremediable breach of this Agreement.
Following termination for any reason Centurion will terminate the Client's password, account and use of the Service. Within 14 days of the termination of the contract the Client must pay to Centurion in full and without set off:
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.
DATA RETURN AND DESTRUCTION
Subject to Clause “Internet Delays” and Clause “Force Majeure”, Centurion will give the Client access to all or part of the Client’s data in its possession or control in the format and medium in which the Client uploaded the data to the service.
On termination of this Agreement for any reason or the expiry of its term, Centurion will securely delete or destroy or, if directed by the Customer using the administration pages of the Service prior to such termination, return and not retain, all or any personal data related to this Agreement in its possession or control in the format and medium in which the Client uploaded the data to the service.
If any law, regulation, or government or regulatory body requires Centurion to retain any documents or materials that Centurion would otherwise be required to return or destroy, it will notify the Client in writing of that retention requirement, giving details of the documents or materials that it must retain, the legal basis for retention, and establishing a specific timeline for destruction once the retention requirement ends.
REPRESENTATIONS & WARRANTIES
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Centurion represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially as documented under normal use and circumstances. The sole remedy for breach of this warranty shall be correction of any Defects by Centurion within a reasonable time from notification by the Client of the Defect that constitutes such a breach, providing that the Client provides all the information that may be necessary to assist Centurion in resolving the Defect, including sufficient information to enable Centurion to recreate the Defect.
The Client represents and warrants that they have not falsely identified themselves nor provided any false information to gain access to the Service and that their billing information is correct.
Centurion will keep all Client Data confidential, providing that Client Data may be disclosed to Centurion's employees, representatives, consultants, contractors or agents (who in turn will be legally bound to keep the Client Data confidential).
The obligation to keep the Client Data confidential will not apply to any information that:
This clause shall survive termination of this agreement, however arising.
The Client shall indemnify and hold Centurion, its licensors and each such party's parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Client Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by the Client of their representations and warranties; or (iii) a claim arising from the breach by the Client or their Users of this Agreement, provided in any such case that Centurion (a) gives written notice of the claim promptly to the Client; (b) gives the Client sole control of the defence and settlement of the claim (provided that the Client may not settle or defend any claim unless they unconditionally release Centurion of all liability and such settlement does not affect Centurion's business or Service); (c) provides to the Client all available information and assistance; and (d) has not compromised or settled such claim.
Centurion shall indemnify and hold the Client and their parent organisations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including all reasonable legal and professional fees and costs) arising out of or in connection with: (i) a proven claim that the Service directly infringes the copyright, or a trademark of a third party; (ii) a claim, which if true, would constitute a substantial and actual violation by Centurion of its representations or warranties; or (iii) a claim arising from Centurion's wilful and knowing disclosure of your Client Data to any unauthorised parties unless required by law; provided that the Client (a) promptly give written notice of the claim to Centurion; (b) give Centurion sole control of the defence and settlement of the claim ; (c) provide to Centurion all available information and assistance; and (d) have not compromised or settled such claim. Centurion shall have no indemnification obligation, and the Client shall indemnify Centurion pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of the Client's products, service, hardware or business process(es).
DISCLAIMER OF WARRANTIES
Centurion and its licensors do not guarantee that:
ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY CENTURION AND ITS LICENSORS.
CENTURION'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. CENTURION IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
In this Agreement, "force majeure" shall mean any cause preventing Centurion from performing any or all of Centurion's obligations which arise from or are attributable to acts, events, omissions or accidents beyond Centurion's reasonable control including without limitation strikes, lock-outs or other industrial disputes, acts of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, interruption or failure of utility service, including but not limited to electric power, gas or water or default of suppliers or sub-contractors.
Centurion shall not be in breach of this Agreement if it is subject to a force majeure event, provided that it uses reasonable endeavours to notify you in writing of the nature and extent of the force majeure event causing Centurion's failure or delay in performance.
If the force majeure event prevails for a continuous period of more than 2 months, the Client may terminate this Agreement by giving 14 days' written notice to Centurion. On the expiry of this notice period, this Agreement will terminate. Such termination shall be without prejudice to Centurion's rights in respect of any breach of this agreement occurring prior to such termination.
LIMITATION OF LIABILITY
NOTHING IN THIS AGREEMENT WILL EXCLUDE OR LIMIT CENTURION'S LIABILITY FOR:
SUBJECT TO THE INDEMNITY CLAUSE, CENTURION SHALL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES AS A RESULT OF A FORCE MAJEURE EVENT.
CENTURION SHALL NOT BE LIABLE FOR:
ARISING IN RESPECT OF ANY REPRESENTATION, STATEMENT, ACT OR OMISSION IN CONNECTION WITH THIS AGREEMENT, WHETHER THE CLAIM ARISES UNDER CONTRACT, TORT, MISREPRESENTATION OR BREACH OF STATUTORY DUTY.
SUBJECT TO PARAGRAPH 1 OF THIS CLAUSE, IN NO EVENT SHALL CENTURION'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM THE CLIENT IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
Centurion may give notice by means of electronic mail to the Client's e-mail address on record in Centurion's account information, or by written communication sent by first class mail or pre-paid post to the address on record in Centurion's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
The Client may only give:
in the administration pages of the Service.
Any other notice may be given to Centurion (such notice shall be deemed given when received by Centurion) by any of the following; letter delivered by nationally recognised overnight delivery service or first class postage prepaid mail to Centurion at the following address: Unit 7, Foundry Court, Horsham, RH13 5PY.
MODIFICATION TO TERMS
Centurion reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time. Such modified terms and conditions will be issued or made available to the Client electronically via email or the administration pages in the Service and shall be deemed effective 12 hours after electronic delivery or notification. Continued use of the Service after any such changes shall constitute the Clients consent to such changes.
ASSIGNMENT; CHANGE IN CONTROL
This Agreement may not be assigned by the Client without the prior written approval of Centurion but may be assigned without the Clients consent by Centurion to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. Any actual or proposed change in control of the Client that results or would result in a direct competitor of Centurion directly or indirectly owning or controlling 50% or more of the Client shall entitle Centurion to terminate this Agreement for cause immediately upon written notice.
This Agreement shall be governed by and construed in accordance with the laws of England and Wales and the parties agree that any dispute relating to its terms or subject matter shall be subject to the exclusive jurisdiction of the English courts.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
No joint venture, partnership, employment, or agency relationship exists between the Client and Centurion as a result of this agreement or use of the Service.
The failure of Centurion to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Centurion in signed writing authorised by a director of Centurion.
This Agreement together with the Processing Policy, Pricing Plan, and any copyright notices on the Website comprises the entire agreement between the Client and Centurion in relation to the Services and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
For the purposes of the Contracts (Rights of Third Parties) Act 1999 this Agreement is not intended to, and does not, give any person who is not a party to it any right to enforce any of its provisions.