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Opayo Terms & Conditions

Opayo Terms & Conditions

Curve Group Holdings Limited General Terms and Conditions for HR Services

Between:
(1) Curve Group Holdings Limited (Company number 06774645) whose registered office is at The Old Stables, Charlton House Estate, Hinton in the Hedges, Northamptonshire, NN13 5LH (“Curve”); and
(2) You, the person or persons or organisations using Curve information or services (the “Client”).

These terms and conditions form the contract between the Parties for the provision of HR services. By purchasing hours through the website and signing the summary terms (“HR Services Agreement”), the Client is confirming its acceptance of these terms and conditions which shall come into force upon signature of the HR Services Agreement and acceptance of payment.

1. Definitions and interpretation

1.1 In this Agreement, unless the context otherwise requires, the following definitions shall apply:

  • “Agreement” means these terms set out in this main agreement including its Clauses amended from time to time in accordance with the terms and conditions set out herein.
  • “Applicable Laws” means the laws of England and Wales and the European Union and any other laws or regulations, regulatory policies, guidelines, or industry codes which apply to the provision of the Services.
  • “Business Day” means any day other than Saturdays, Sundays, and any public holidays in the United Kingdom.
  • “Charges” means the Fee and any other charges which are payable by the Client to Curve.
  • “Client Data” means all electronic data or information of the Client submitted by or on behalf of the Client to Curve in connection with Curve’s performance of the Services.
  • “Confidential Information” means all information disclosed by one Party to the other in connection with this Agreement which the receiving Party has been informed is confidential and/or which the receiving party ought reasonably to comprehend that the disclosing Party would regard as confidential including (without limitation) the Charges and associated price information.
  • “Curve Material” means all documents, processes, know-how, trade secrets, techniques, software, designs, inventions and other tangible or intangible material or information used, developed or provided by Curve in connection with the Services; and any modifications, improvements to, or derivative works of, any of the foregoing.
  • “Curve Material IPR” means all Intellectual Property Rights in the Curve Material.
  • “Curve Personnel” means any staff of Curve assigned to the performance of the Services.
  • “Data Protection Legislation” means all legislation and regulatory requirements in force from time to time relating to the use of personal data and the privacy of electronic communications, including without limitation; (i) any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 (the “DPA”) or any successor legislation, and (ii) the General Data Protection Regulation (EU) 2016/679 as it forms part of domestic law in the United Kingdom by virtue of section 3 of the European Union (Withdrawal) Act 2018 (including as further amended or modified by the laws of the United Kingdom or of a part of the United Kingdom from time to time) (“GDPR”), and (iii) any laws or regulations ratifying, implementing, adopting, supplementing or replacing GDPR or DPA; in each case, to the extent in force, and as such are updated, amended or replaced from time to time.
  • “DP Regulator” means any governmental or regulatory body or authority with responsibility for monitoring or enforcing compliance with Data Protection Legislation.
  • “Fee” means the fee for the Services as detailed in the HR Services Agreement.
  • “Force Majeure Event” means in relation to either Party, any circumstances beyond the reasonable control of the Party in question including (without limitation) strikes, lockouts or other industrial disputes, Acts of God, war, civil commotion, riot, invasion, fire, explosion, storm, flood, earthquake, subsidence or other natural physical disaster or acts of terrorism.
  • “Intellectual Property Rights” means any and all present and future copyrights, moral rights, registered designs, patents, trademarks, service marks, design rights (whether registered or unregistered), applications for any of the above, rights to extract or re-utilise data, database rights, trade secrets, rights of confidence and all other similar rights recognised in any part of the world.
  • “Losses” means all losses, liabilities, damages, costs, expenses (including management time and reasonable legal fees) and charges arising out of or resulting from actions, proceedings, claims and demands.
  • “Parties” means the parties to this Agreement, and “Party” shall be construed accordingly.
  • “Services” means the provision of HR advice and/or consultancy support provided by Curve to the Client.
  • “Service Hours” means Monday to Friday 09:00 to 17:30 but excluding bank holidays recognised in England and Wales.
    “Term” means the term of this Agreement.

1.2 Words importing one gender include any other and the singular includes a plural and vice versa and references to a “person” include any individual, firm or body corporate, joint venture, government state or agency of a state or any partnership or association (whether or not having a separate legal personality).

1.3 Where reference is made to a statutory provision this includes all subsequent enactments, amendments and modifications relating to that provision and any subordinate legislation made from time to time under it.

1.4 “Tax” includes all present and future taxes, imposts, levies, assessments, duties, charges, fees, deductions and withholdings in all relevant jurisdictions and all interest on them, additions to them and penalties and fines in respect of them.

1.5 The term “including” means “including without limitation”.

1.6 Reference to any Party includes that Party’s permitted successors and assignees.

1.7 Headings contained in this Agreement are for reference purposes only and should not be incorporated into this Agreement and shall not be deemed to be any indication of the meaning of the Clauses to which they relate.

2. The Services

2.1 By purchasing hours, the Client hereby appoints Curve to provide the Services on a short-term basis during Service Hours.

2.2 Curve shall:
(a) provide the Services using reasonable skill and care in accordance with good industry practice;
(b) provide the Services in accordance with all Applicable Laws; and
(c) ensure that any Curve Personnel who are engaged by Curve in the provision of any of the Services have the required skill, experience, and qualifications to perform such Services.

2.3 The Client shall:
(a) Ensure all information it provides to Curve is accurate to the best of its knowledge; and
(b) Make payments due to Curve in a timely manner.

3. Charges

3.1 The Fee for Services is due immediately upon acceptance of these terms and conditions. Services shall not commence until payment has been made.

3.2 All sums identified in this Agreement are shown exclusive of VAT, unless otherwise expressly stated which shall, where applicable, be paid by the Client at the prevailing rate subject to Curve providing the Client with valid tax invoices or such other documentation as may be required by any relevant tax laws.

3.3 Neither Party shall have any right to set off or withhold any sums due to it by the other Party from any sums due to the other Party under this Agreement.

4. Applicable Laws

4.1 The Parties shall at all times comply with all Applicable Laws.

5. Intellectual Property Rights

5.1 Title and ownership to any pre-existing software, materials, tools, documentation, or methodologies supplied by a Party for the performance of the Services shall remain the property of the supplying Party or the lawful owner.

5.2 Any Intellectual Property Rights created by Curve, as requested by the Client, and agreed by the Parties in writing, during the course of the provision of the Services for the sole and exclusive use of the Client (“Client Specific Material”) shall be owned and vested absolutely in the Client, save for any Curve Material IPR. Curve shall take all such actions, including the execution and delivery of any and all documents to perfect the Client’s rights in any such Client Specific Material.

5.3 Any Curve Material IPR shall remain vested or automatically vest on creation at all times in Curve (or its third-party licensors as applicable).

5.4 Curve hereby grants to the Client a royalty-free, non-exclusive, non-transferable licence (for the duration of the Term) to use the Curve Material IPR which is (a) incorporated in any materials which are created during the provision of the Services for use by the Client, or (b) required to be used by the Client in order to receive the Services.

5.5 The Client hereby grants to Curve a royalty-free, non-exclusive, non-transferable licence (for the duration of the Term) to use the Client Specific Material, for the purposes of providing the Services and, with the written permission of the Client, which will not be unreasonably withheld, for marketing campaigns.

5.6 Any Intellectual Property Rights which are jointly developed by the Parties in connection with this Agreement (“Joint IPR”) shall be owned and vested absolutely in Curve, save for any Client Specific Material. The Client shall take all such actions, including the execution and delivery of any and all documents to perfect Curve’s rights in any such Joint IPR.

5.7 Curve hereby grants to the Client a royalty-free, non-exclusive, non-transferable perpetual licence to use the Joint IPR for its internal business purposes.

6. Confidentiality

6.1 Except to the extent set out in this Clause 6, or where disclosure is expressly permitted elsewhere in this Agreement, each Party shall:
(a) keep confidential all Confidential Information which may become known to it/them in connection with the supply of the Services and this Agreement; and
(b) not use any Confidential Information except for the purposes of performing the Services and performing its obligations under this Agreement.

6.2 Clause 6.1 shall not apply to the extent that:
(a) such information was in the possession of the receiving Party, without obligation of confidentiality, prior to its receipt of the information from the disclosing Party; or
(b) such information was obtained from a third party without obligation of confidentiality; or
(c) such information was already in the public domain at the time of disclosure otherwise than through a breach of this Agreement; or
(d) such information was independently developed without access to the other Party’s Confidential Information.

6.3 Clause 6.1 shall not prevent the use or disclosure of Confidential Information by a receiving Party to the extent required by law or any competent regulatory body.

6.4 A receiving Party may only disclose the Confidential Information of the disclosing Party to:
(a) the receiving Party’s professional advisers where reasonably necessary for the performance of their professional services or in connection with legal proceedings; and
(b) the receiving Party’s officers, employees, agents, and sub-contractors solely to the extent necessary for the purposes of this Agreement.

Where any disclosures are made pursuant to this Clause 6.4, the receiving Party shall ensure that any recipient is aware of, and complies with, the confidentiality obligations in this Clause 6.

7. Data Protection

7.1 The terms “Data Subject”, “Personal Data” and “processing” shall have the meanings set out in the applicable Data Protection Legislation.

7.2 In relation to the performance of its obligations under this Agreement, each Party shall comply with the provisions of the Data Protection Legislation and any equivalent legislation or regulations in any relevant jurisdiction.

7.3 Neither Party shall, by any act or omission, cause the other Party to breach the Data Protection Legislation in connection with this Agreement.

7.4 Schedule 1 sets out details of the processing of Personal Data to be undertaken by Curve in connection with this Agreement, including in respect of the types of Personal Data, categories of Data Subjects, and nature and purposes of processing. Such processing shall take place throughout the duration of this Agreement.

7.5 Each party shall maintain records of all processing operations under its responsibility that contain at least the minimum information required by the Data Protection Legislation and shall make such information available to any DP Regulator on request.

7.6 To the extent Curve receives from, or processes any Personal Data on behalf of, the Client, Curve shall:
(a) process such Personal Data only in accordance with the Client’s written instructions from time to time (including those set out in this Agreement) save for processing which Curve is required to do by Applicable Laws;
(b) ensure that any personnel who have access to Personal Data are subject to binding obligations of confidentiality when processing such Personal Data;
(c) implement and maintain technical and organisational measures and procedures to ensure an appropriate level of security for such Personal Data, including protecting such Personal Data against the risks of accidental, unlawful, or unauthorised destruction, loss, alteration, disclosure, dissemination, or access;
(d) inform the Client if any such Personal Data is (while within Curve’s possession or control) subject to a personal data breach (as defined in the applicable Data Protection Legislation);
(e) not disclose any Personal Data to any Data Subject or to a third party other than at the written request of the Client or as expressly provided for in this Agreement;
(f) as the Client so directs, return or delete all Personal Data on termination or expiry of this Agreement, and not make any further use of such Personal Data (except to the extent Applicable Law require continued storage of the Personal Data by Curve;
(g) provide to the Client and any DP Regulator (at the Client’s cost) all information and assistance necessary to demonstrate or ensure compliance with the obligations in this Clause 7 and/or the Data Protection Legislation;
(h) permit the Client or its representatives (at the Client’s cost) to access any relevant premises, personnel, or records of Curve on reasonable notice to audit and otherwise verify compliance with this Clause 7;
(i) take such steps as are reasonably required to assist the Client (at the Client’s cost) in ensuring compliance with the Client’s obligations under Articles 30 to 36 (inclusive) of GDPR;
(j) notify the Client if it receives a request from a Data Subject to exercise its rights under the Data Protection Legislation in relation to that person’s Personal Data; and
(k) provide the Client (at the Client’s cost) with its reasonable co-operation and assistance in relation to any request made by a Data Subject to exercise its rights under the Data Protection Legislation in relation to that person’s Personal Data.

7.7 If either Party receives any complaint, notice or communication which relates directly or indirectly to the processing of Personal Data by the other Party or to either Party’s compliance with the Data Protection Legislation, it shall promptly notify the other Party and it shall provide the other Party with reasonable co-operation and assistance in relation to any such complaint, notice or communication.

7.8 Where the Client transfers Personal Data to Curve, the Client warrants to Curve that it has the right to transfer such Personal Data to Curve, and that it has either:
(a) obtained all necessary consents to transfer the Personal Data to Curve at the appropriate time, or
(b) secured another legal data processing ground, in accordance with applicable Data Protection Legislation, to process the Personal Data and to share such Personal Data with Curve.

7.9 The Client acknowledges that Curve is reliant on the Client alone for direction as to the extent Curve is entitled to use and process the Personal Data. Consequently, Curve shall be entitled to relief from liability in circumstances where a Data Subject makes a claim or complaint with regards to Curve’s actions to the extent that such actions result from (a) instructions received from the Client or (b) a breach by the Client of its obligations under this Clause 7.

7.10 Curve may subcontract its processing of the Personal Data on behalf of the Client. Curve shall procure that any such sub-contractors enter into a written contract with Curve which contains obligations for the protection of the Personal Data which are no less onerous than those set out in this Clause 7.

8. Liability

8.1 Neither Party excludes or limits its liability for:
(a) death or personal injury caused by its negligence, or that of its employees;
(b) fraud or fraudulent misrepresentation by it or its employees;
(c) breach of any obligation as to title implied by statute; or
(d) any other act or omission, liability for which may not be limited under Applicable Law.

8.2 Subject to Clause 8.1, Curve’s total aggregate liability in respect of its own negligence, breach of contract, breach of statutory duty or any other liabilities arising under or in connection with this Agreement (including under any indemnities) shall be limited to the total Fee sums paid by the Client.

8.3 Subject to Clause 8.1, neither Party shall in any circumstances be liable to the other Party for:
(a) any indirect, special, or consequential loss or damage; or
(b) any loss of profits, business opportunities, revenue or damage to goodwill, or loss or corruption of data (in each case whether arising directly or indirectly).

8.4 Nothing in this Agreement shall be taken as in any way reducing or affecting a general duty to mitigate loss suffered by a Party.

8.5 The Client acknowledges and agrees that Curve shall not have any responsibility for providing legal advice in connection with Curve’s provision of the Services.

8.6 For the avoidance of doubt, the Client acknowledges and agrees that Curve does not accept any liability in relation to any actions taken by the Client in response to the advice given by Curve or any advice given by Curve to the Client as a result of incorrect information provided by the Client.

9. Insurance

9.1 Both Parties will at all times during the Term, maintain the levels of Public Liability, Employer’s Liability and Professional Indemnity insurance which are necessary to cover their potential liabilities under this Agreement.

9.2 Upon request, a Party shall supply evidence of their current insurance policy to the other Party.

10. Force Majeure

10.1 Neither Party to this Agreement shall in any circumstances be liable to the other Party for any delay or non-performance of its obligations under this Agreement to the extent that such non-performance is due to a Force Majeure Event.

11. Communications

11.1 Any notice or other communication which is given under this Agreement to a Party shall be notified in writing to the other Party in accordance with this Clause 11 and shall be given, by hand, first class post or recorded delivery post or by email (and any email shall be confirmed by the sender’s computer to have been sent without error to the recipient’s email address).

11.2 Notices or communications sent by first class post or by recorded delivery post shall be deemed to be served three (3) Business Days following the day of posting. Notices or communications sent by email shall be deemed to be served on the day of transmission if transmitted before 4:00pm on a Business Day, but otherwise on the next following Business Day. In all other cases, notices and communications shall be deemed to have been served on the day when they are actually received.

12. Dispute Resolution and Escalation

12.1 Any question or difference which may arise concerning the construction, meaning, or effect of this Agreement or any dispute arising out of or in connection with this Agreement will be dealt with under the dispute resolution and escalation procedures set out in this Clause 12.

12.2 If any dispute arises between the Parties with respect to the scope or performance of the Services, the conformity of the Services with the provisions of this Agreement or as otherwise specified under this Agreement, or basis for calculation of any of the Charges then that dispute shall at the request of either party be referred to a person agreed between the Parties or, in default of agreement, within seven (7) Business Days of notice from either Party calling on the other to agree, to a person chosen on the application of either Party by the President for the time being of the Institute of Chartered Accountants in England and Wales. That person shall be instructed to reach his decision as soon as reasonably practicable, shall be appointed as an expert and not as an arbitrator and his decision shall be final and binding (in the absence of fraud or manifest error). The costs of the expert shall be borne as determined at the discretion of the expert.

13. Ethical Business Practice

13.1 Each Party shall conduct its business and its relationships with each other and third parties in good faith and in a fair and ethical manner.

14. Third Party Rights

14.1 Save as expressly provided in Clause 14.2 or otherwise in this Agreement, a person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of this Agreement.

14.2 Any and all members from time to time of the Curve Group and any person who is a permitted successor or assignee of the rights and benefits of Curve may enforce any term of this Agreement. The “Curve Group” refers to Curve, any body corporate of which Curve is a subsidiary (as defined in Section 1159 of the Companies Act 2006) and any other subsidiary (as so defined) of such body corporate.

15. Governing Law and Jurisdiction

15.1 The Agreement and any dispute, claim or obligation (whether contractual or non-contractual) arising out of or in connection with it, its subject matter or formation shall be governed by and interpreted in accordance with the laws of England and Wales.

15.2 Subject to Clause 12 (Dispute Resolution and Escalation), the Parties irrevocably agree that the English courts shall have exclusive jurisdiction to settle any dispute or claim (whether contractual or non-contractual) arising out of or in connection with this Agreement, its subject matter or formation.

16. Right to assign or novate

16.1 Neither Party shall, without the prior consent of the other Party, assign or novate any of its rights or obligations under this Agreement or any part of this Agreement.

17. General

17.1 Entire Agreement:
(a) This Agreement (including the signed HR Services Agreement between the Parties) constitutes the entire agreement between the Parties relating to the provision of the Services and supersedes any previous oral or written understanding, commitment, contract or representation (unless such representation was made fraudulently) relating to the subject matter of this Agreement.
(b) The terms of this Agreement prevail over any terms of business or purchase conditions put forward by the Client or any Client Group Company (including any terms set out in any purchase order or timesheet).
(c) Neither Party to this Agreement has been induced to enter into this Agreement by a statement or promise which the Agreement does not contain.

17.2 Rights cumulative: All rights granted to either of the Parties under this Agreement shall be cumulative and no exercise by any of the Parties of any right under this Agreement shall restrict or prejudice the exercise of any other right granted by this Agreement or otherwise available to it.

17.3 Waiver: The failure by any Party to enforce at any time or for any period any one or more of the terms or conditions of this Agreement shall not operate as a waiver of them or of the right at any time subsequently to enforce all terms and conditions of this Agreement.

Schedule 1 – Data Processing Activities

The Personal Data processing activities carried out by Curve under this Agreement may be described as follows:

1. Subject matter of processing
Employment-related personal data of those employed and or engaged in a work-related capacity by the controller, ex-employees, or self-employed individuals.

2. Nature and purpose of processing
Receive HR advice from the processor in relation to employment-based matters.

3. Categories of Personal Data
May include names, email addresses, contact details, personal details (such as date of birth, nationality and the right to work in UK), pay details, data relating to the contract (including terms and conditions), working hours, timekeeping records, attendance and sickness absence records, periods of statutory leave (such as maternity, adoption, parental, paternity, shared parental leave), statutory entitlements, appraisal and or assessments and or performance review information or other performance management information, skills and experience, disciplinary and grievances, records of concern, disability, health and or medical records, health and safety records, or equal opportunity related information.

4. Categories of data subjects
Employees, ex-employees, workers, apprentices or self-employed.

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