Rules of the Goodwords by Lumesse Reference Procedure

Lumesse UK Limited (hereinafter also referred to as “Lumesse”, “We”, “Us” or “Our”) provides an online referencing solution “Goodwords by Lumesse” which enables entities looking to hire a new employee (hereinafter referred to as “Reference Taker”) to obtain information and subjective opinions on Applicants (hereinafter referred to as “Reference Procedure”. This Reference Procedure is designed to complement other sound selection and hiring practices.

The Reference Procedure starts by the person looking for new employment (hereinafter referred to as “Applicant”) providing the Reference Taker with details of individuals who have already worked with the Applicant on a professional basis, or have otherwise been associated with the Applicant (hereinafter referred to as “Reference Givers” ( e.g. former employers, colleagues or clients). The Reference Giver will be asked to give provide true and benevolent statements and information with regard to the Applicant (hereinafter referred to as “Reference”).

When providing Reference Giver details, the Applicant agrees not to engage in any matters which could influence the Reference Giver to give incomplete or untrue References and waives the right to hold the Reference Giver liable for any claim relating to or arising with respect to References given. This waiver of liability does not apply if the References were made knowing they are incorrect.

By providing a Reference, the Reference Giver implicitly agrees to only make and provide true and benevolent statements and information with regard to the Applicant. The Reference will go directly to the Reference Taker, and Goodwords by Lumesse does not make this Reference available to the Applicant.

The Reference Procedure is free of charge to Applicants and Reference Givers, and each are under no obligation to participate in the Reference Procedure.

Free Trial Terms and Conditions

We offer the trial of the Reference Procedure to (potential) customers (hereinafter referred to as “You” or “Your”).

By clicking on the button “Create Free Account” You confirm that You are signing up for a trial of the Reference Procedure on behalf of a company potentially interested in using Goodwords by Lumesse and You agree that You accept and agree to be bound by the following terms and conditions (hereinafter referred to as “Agreement”). Your own terms and conditions do not become part of the contract, not even, if We do not expressly object to them.

  1. Licence to use Goodwords by Lumesse

1.1          You are granted a non-exclusive, non-transferable licence to use Goodwords by Lumesse (including any associated IPR and Confidential Information) from the date on which the use of the Reference Procedure free of charge for evaluation purposes as set out above (hereinafter referred to as “Trial”) starts (also referred to as “Trial Service Start Date”).“IPR” means all copyrights, patents, utility models, trade marks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, semiconductor topography rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world. No additional implied rights are granted beyond those specifically set out here.

1.2          Unless otherwise specified in this Agreement, Goodwords by Lumesse is provided and may only be used by You. You may not (i) lease, loan, resell, assign, license, distribute or otherwise permit access to Goodwords by Lumesse; or (ii) use Goodwords by Lumesse to provide ancillary services related to Goodwords by Lumesse; or (iii) permit access to or use of Goodwords by Lumesse by or on behalf of any third party, except as permitted in this Agreement.

1.3          All IPR and title to Goodwords by Lumesse (save to the extent these incorporate your or third party owned items) shall remain with us and/or our licensors and subcontractors and no interest or ownership in Goodwords by Lumesse, the IPR or otherwise is transferred to You under this Agreement. Notwithstanding Your statutory rights, no right to modify, adapt, or translate Goodwords by Lumesse or create derivative works from Goodwords by Lumesse is granted to You. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that You have any right to obtain any source code for the software comprised within Goodwords by Lumesse.

1.3          Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within Goodwords by Lumesse is prohibited. To the extent that You are granted the right by law to decompile such software in order to obtain information necessary to render Goodwords by Lumesse interoperable with other software, We will provide access to any relevant source code or information provided that You make a written request identifying the relevant details of Goodwords by Lumesse with which operability is sought and the nature of the information needed. We have the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.

1.5           You shall not remove any copyright notices from Goodwords by Lumesse.

1.6          Any code, interfaces or metadata (including timestamps, IP addresses and communication data) created in connection with or as a result of Goodwords by Lumesse shall become or remain, as the case may be, ownership of the Us and/or Our licensors.

  1. Your Obligations

2.1          When trying Goodwords by Lumesse, principles of fairness entail that you will strictly comply with the confidentiality customary in an application procedure and that you will not use the References given during the Reference Procedure for other purposes than the specific application procedure in which the Applicant participates.

2.2          You further undertake to refrain from requesting information regarding the religious orientation, political party membership, union membership, personal financial circumstances, membership in clubs and associations, pregnancy, intention to marry or similar aspects of the individual sphere or the sexual orientation of the Applicant.

2.3          You further waive your right to hold a Reference Giver liable for References given whether based on contract, tort (including negligence), breach of statutory duty, misrepresentation or otherwise for any claim or series of claims relating to or arising with respect to References given. This waiver of liability does not apply if the References were made knowing they are incorrect.

2.4          In case a Reference is incomplete, you may request clarification from the Reference Giver.

  1. Term and Termination

3.1           This Agreement shall commence on the Trial Service Start Date.

3.2           During the Trial either party may terminate this Agreement immediately at any time.

3.3          We reserve the right to delete Your data ten (10) days after termination. We are not obligated to store any of Your data after such time.

3.4          Termination of this Agreement for any reason shall not affect the accrued rights of the parties arising under this Agreement and in particular without limitation the right to recover damages against the other. The following sections shall survive the termination of this Agreement: 2, 3.3, 5. 6, 7, 8, 10.3 to 10.5 (both inclusive), 11 to 16 (both inclusive) and this section 3.4, together with all other sections that are intended, either expressly or impliedly, to survive the expiry or termination of this Agreement.

  1. Representations and Warranties

4.1          We will ensure that the Reference Takers will declare their consent with this Agreement and the rules of the Reference Procedure.

4.2          You acknowledge and agree that notwithstanding any provision to the contrary in this Agreement, during the Trial Goodwords by Lumesse is provided for evaluation purposes on an “AS IS” basis and, for the duration of the Trial only, such use will be free of charge. Accordingly, and to the maximum extent permitted by applicable law, We hereby disclaim all warranties and conditions, whether express, implied or statutory, regarding Goodwords by Lumesse, including, but not limited to, any warranty of merchantability, satisfactory quality or fitness for a particular purpose and non-infringement of third party rights. You acknowledge and agree that it shall be solely responsible for the use of Goodwords by Lumesse during the Trial.

  1. Liability

5.1          The parties do not exclude or limit their liability to each other for fraud, death or personal injury caused by any negligent act or any other liability that cannot be excluded or limited by law.

5.2          The parties shall not be liable for any indirect, consequential, incidental or special loss or damage arising out of or related to this Agreement (whether based on contract, tort (including negligence), breach of statutory duty, misrepresentation, liability under indemnities or other), even if the party was advised of the possibility of such damages.

5.3          The parties shall not be liable for any of the following types of loss or damages arising out of or related to this Agreement (whether direct or indirect, and whether based on contract, tort (including negligence), breach of statutory duty, misrepresentation, liability under indemnities or otherwise) even if a party was advised of the possibility of such damages: (i) loss of profits; (ii) losses incurred by any client of You or other third party; (iii) losses arising from business interruption; (iv) loss of business; (v) loss of revenue; (vi) loss of goodwill; (vii) loss of anticipated savings; or (viii) loss of or damage to data.

5.4          The parties shall not raise any claim under this Agreement more than 1 year after (i) the discovery of the circumstances giving rise to a claim; or (ii) the effective date of termination or expiry of this Agreement.

5.5          The parties acknowledge and agree that by entering into this Agreement, each had recourse to its own skill and judgement and has not relied on any representation made by the other, their employees or agents.

  1. Data Protection and Storage

6.1          Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.

6.2          To the extent that personal data is processed using Goodwords by Lumesse, the parties acknowledge that We are a data processor and You are a data controller and the parties shall comply with their respective statutory data protection obligations. We agree that we will only process personal data on behalf of, and in the name of, You.

6.3          You shall ensure that the personal data, which you supply or discloses to Us, has been obtained fairly and lawfully and that you will obtain all necessary approvals from persons whose data is being processed and registrations with authorities to permit Us to transfer personal data to third parties pursuant to your obligations under this Agreement.

6.4          We confirm that we (i) merely act as a data processor; (ii) will only process data in accordance with your instructions; and (iii) have taken, as well as our subcontractors, licensors and hosts, sufficient technical and organisational measures to safeguard personal data.

6.5          If a third party alleges infringement of its data protection rights, We shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.

 

  1. Indemnities

7.1          You shall indemnify and hold Us and Our employees, directors, sub-contractors and/or agents harmless from and against any costs, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly from any: (i) claimed infringement or violation by You of any IPR with respect to Your use of Goodwords by Lumesse outside of the scope of this Agreement; (ii) access to or use of Goodwords by Lumesse by a third party whether directly or indirectly; and (ii) breaches of data protection law or regulations resulting from us processing data on Your behalf of and in accordance with Your instructions. Furthermore, We shall be entitled to take reasonable measures in order to prevent any data or content which is defamatory, constitutes a breach of the IPR and/or legal rights of any third party from being published on the Internet and breaches of third party rights from continuing.

7.2          If all or part of Goodwords by Lumesse becomes, or in Our opinion may become, the subject of a claim or suit of IPR infringement, We shall at our own expense and sole discretion: (i) procure for You the right to continue to use Goodwords by Lumesse or the affected part thereof; (ii) replace Goodwords by Lumesse or affected part with other suitable non-infringing service or software; or (iii) modify Goodwords by Lumesse or affected part to make the same non-infringing.

7.5          We shall have no obligations under section 7.1 or 7.2 above to the extent that a claim is based on: (i) the combination, operation or use of Goodwords by Lumesse with other services or software not provided by Us if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of Goodwords by Lumesse in any manner inconsistent with this Agreement; or (iii) Your negligence or willful misconduct . This section 7 states Our sole and entire obligation and liability, and Your sole and exclusive right and remedy, for Goodwords by Lumesse infringing a third party’s IPR.

  1. Confidential Information

8.1          Each party may use the Confidential Information of the disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of the disclosing party except to the extent (if any) that the recipient of any Confidential Information is required by law or any regulatory, governmental or other authority with relevant powers to which either party is subject (except in relation to Disclosure Requests which shall be subject to sections 8.5 and 8.6 below) to disclose the Confidential Information.

Confidential Information” means any and all information in any form relating to either party (including any affiliates, holding companies or subsidiaries), or the business, prospective business, technical process, computer software (both source code and object code), IPR or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s possession by virtue of its entry into this Agreement or provision of Goodwords by Lumesse or Services, and which is marked or designated as ‘confidential’ or which the party regards, or should reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from such information and shall include but not be limited to the terms of this Agreement, names, addresses and CVs of current or prospective employees, mailing lists, organisation charts, information relating to products, services, research, technology, customers, business plans, promotional and marketing materials, financial information and business information. “Disclosure Request” means a request under the Freedom of Information Act 2000 or similar legislation, including without limitation the Environmental Information Regulations 2004 or the Data Protection Act 1998 for a party to disclose Confidential Information, including for the avoidance of doubt a request to disclose whether or not such information is actually held by a party.

8.2          A receiving party may disclose the Confidential Information of the disclosing party to those of its employees and agents who need to know the Confidential Information for the purposes of this Agreement.

8.3          Both parties agree to return or destroy all documents, materials or data containing Confidential Information to the disclosing party without delay upon completion of the Services or termination or expiry of this Agreement.

8.4          The obligation of confidentiality under this Agreement does not extend to information that (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the Effective Date, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is required by law to be disclosed.

8.5          If either party receives a Disclosure Request such party shall (i) promptly consult with and take into account any comments from the other party prior to making any disclosure; and (ii) work with the other party to ensure that any exemptions or other legitimate means of preventing disclosure or limiting disclosure are used to the fullest extent possible.

8.6          The parties acknowledge and agree that without prejudice to the general confidentiality provisions in this section 8 and without limitation, all information falling within the definition of Confidential Information and any information which is supplied by the disclosing party to the receiving party pursuant to this Agreement or the negotiation thereof is (i) Confidential Information the disclosure of which by the receiving party would be an actionable breach of confidence; or (ii) a trade secret of the disclosing party; and (iii) information, the disclosure of which would be likely to prejudice the commercial interests of the disclosing party or of any other person.

  1. Anti-Bribery

Each party shall, and shall ensure that its directors, officers, employees, agents and any other third party that performs services on its behalf shall comply with all applicable laws relating to anti-bribery and anti-corruption including but not limited to the Bribery Act 2010, and shall not offer, promise or agree to give any financial or other advantage to: (i) any official or employee of (or person acting in an official capacity on behalf of) any government, governmental or regulatory agency or other public body in return for such person assisting, either directly or indirectly, in obtaining or retaining business for the other party, or (ii) any other person as an inducement or reward for the improper performance of any function or activity in relation to obtaining or retaining business for the other party. If a party does not comply with this section, such non-compliance will be considered a material breach of this Agreement incapable of remedy and the other party may terminate this Agreement with immediate effect.

  1. Assignment and Relationship between Parties

10.1       You may not assign, transfer, sub-license or subcontract your rights and obligations under this Agreement without Our prior written consent, and such consent shall not be unreasonably withheld.

10.2       We may assign, transfer, sub-license or otherwise deal with any of our rights or obligations under this Agreement, provided we give written notice to You of any such assignment, transfer, sub-license or other dealing. Notwithstanding the foregoing, We may at our sole discretion subcontract any of its obligations under this Agreement.

10.3       We and You are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.

10.4       This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions (whether made negligently or innocently) between the parties relating to the subject matter thereof.

10.5       Nothing contained in this Agreement is intended to be enforceable pursuant to the Contracts (Rights of Third Parties) Act 1999 by any third party.

  1. Severability

Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.

  1. Force Majeure

If a party is wholly or partially unable to comply with its obligations under this Agreement due to a Force Majeure event, then, except for payment obligations, that party’s obligation will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the Agreement. ”Force Majeure” means anything outside the reasonable control of a party, including but not limited to acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, access to the internet being restricted, suspended or blocked, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failure to approve) of any government or government agency.

  1. Waiver

The failure of either party to exercise any right or option that is granted in this Agreement, or to require performance of this Agreement, or the waiver by either party of any breach of this Agreement shall not prevent a subsequent exercise or enforcement of the relevant provision or be deemed a waiver of any subsequent breach of the same or any other provision.

  1. Dispute Resolution

14.1       The parties will use their respective reasonable efforts to negotiate in good faith and settle any dispute that may arise out of or in relation to this Agreement and any breach of it.

14.2       If any such dispute cannot be settled amicably through ordinary negotiations of the sales/purchasing directors of each party, the dispute shall be escalated in writing to senior management of both parties who shall in good faith try and resolve the dispute. If the dispute or difference is not resolved within fourteen (14) days of the dispute being escalated the parties shall then be entitled to pursue their claim in accordance with section 16. below.

  1. Governing Law and Jurisdiction

This Agreement and any dispute or claim arising out of or in connection with it (including any dispute or claim relating to non-contractual obligations) shall be governed by and construed with English law. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.