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Terms & Conditions of Business

1. APPLICABILITY & DEFINITIONS 

The following terms and conditions together with any additional specific terms and conditions shall, unless agreed in writing by a director of Eclipse Software Group Limited (“ESG”), apply to and govern all orders for the supply of products and services, the licensing of software, and the provision of services by ESG and/or the relevant Group Company. 

In the absence of a signed Order Form, Subscription Contract or other written agreement, the Customer’s access to or use of the Software, Products or Services, other than solely for authorised demonstration or evaluation purposes, shall constitute acceptance of these Conditions. The Customer shall be deemed to have accepted these Conditions and entered into an Agreement with ESG or the Relevant Group Company from the date of first such access or use. 

Any person placing an order, accepting a quotation, signing an Order Form, approving a Subscription Contract, completing a Direct Debit mandate, accessing or using the Software, Products or Services, making payment, requesting support or otherwise acting on behalf of the Customer warrants that they have authority to bind the Customer. 

Acceptance of these Conditions, an Order Form, Subscription Contract, quotation, renewal, variation or other agreement may be given by signature, electronic signature, email confirmation, online acceptance, completion of a Direct Debit mandate, payment, continued access to or use of the Software, Products or Services, or any other conduct indicating acceptance. 

In these terms the definitions below have the following meanings: 

1.1 “Agreement” means the Order Form, the Agreement made subject to these Conditions. 

1.2 “Billing Period” means the period of 1 month for which a service is provided and charged. 

1.3 “Billing Period Start” means the day of a calendar month on which the Billing Period for the service provided starts and on which charges for the Billing Period are applied in advance. 

1.4 “Chargeable Day” means one person working on a calendar day for up to seven hours (7 hours) 

1.5 “Conditions” means these terms and conditions 

1.6 “ESG” means Eclipse Software Group Limited, a company registered in England and Wales with company number 17326378, whose registered office is at 42-46 Station Road, Edgware, England, HA8 7AB, trading as Eclipse Software from Orega Piccadilly, 3 Piccadilly Place, Manchester, M1 3BN. 

1.7 “Group Company” means ESG, any holding company or subsidiary of ESG from time to time, and any subsidiary undertaking or associated company of ESG, including Eclipse Recruitment Software Ltd, a company registered in England and Wales with company number 17301040, Eclipse Recruitment Websites Ltd, a company registered in England and Wales with company number 07008719, and Eclipse Software Services Limited, a company registered in England and Wales with company number 17328346. 

1.8 “Group Personnel” means the employees, workers, officers, contractors, consultants, subcontractors, agents and representatives of ESG, the Relevant Group Company or any Group Company, including personnel employed or engaged by Eclipse Software Services Limited. 

1.9 “Relevant Group Company” means the Group Company identified on the applicable Order Form, invoice, renewal notice, subscription confirmation, Direct Debit mandate, payment instruction or other written communication as being responsible for supplying, licensing, administering, invoicing or collecting payment for the relevant Products or Services. 

1.10 The “Company’s Network” means the network owned and operated by ESG or the Relevant Group Company for the purpose of connecting the Customer to cloud hosted solutions. 

1.11 “Customer” means any person or organisation with whom ESG or the Relevant Group Company enters into an Agreement in accordance with these terms and conditions. 

1.12 “Customer Data” means all data, files, records, documents, content, databases, candidate records, client records, contact records, website content, uploaded files and other materials uploaded to, stored within, processed through or hosted on the Software, Products or Services by or on behalf of the Customer. 

1.13 “Direct Debit mandate” means a valid authority given by the Customer for ESG or the Relevant Group Company to collect payments by Direct Debit. 

1.14 “Internet” means the global data network comprising interconnected networks to which ESG or the Relevant Group Company is connected and provides access to its Customers.  

1.15 “Internet Protocol Address” means such sequence of alphanumeric or numeric characters used from time to time to identify the Customer, its systems, devices or services on a network or the Internet. 

1.16 “Legacy Product” means older versions of the company’s software which were previously purchased with a perpetual licence agreement and parallel support agreement. 

1.17 “Order Form” means the ESG or the Relevant Group Company’s standard Order Form relating to the Services for the Customer. 

1.18 “Products” refers to ESG and third party products and services available for sale or software licensed to the Customer by ESG or the Relevant Group Company. 

1.19 “Services” means any of the services described in the current ESG literature together with such Value Added Services to be provided by ESG or the Relevant Group Company to the Customer and confirmed in writing prior to the purchase of the Service. 

1.20 “Service Commencement Date” means the date identified as the delivery date specified on the Customer Order Form or ‘Specification of Services’.  

1.21 “Software” means any software, application, platform, module, update, release, API, code, database, tool, licence-controlled component or related material supplied, licensed or made available by ESG or the Relevant Group Company. 

1.22 “Software Services” means recruitment software subscriptions, software licences, support, training, implementation, configuration, consultancy, data conversion and related services supplied, licensed, administered, invoiced or collected by ESG or Eclipse Recruitment Software Ltd. 

1.23 “Specification” means a detailed written specification of the Services to be provided to the Customer under the Agreement.  

1.24 “Subscription” means a recurring payment model where the Customer pays a regular fee (e.g., monthly, annually) to access and use software or services provided by ESG or the Relevant Group Company for the duration of the Subscription term.  

1.25 “Subscription Contract” means any agreement, order, renewal, subscription confirmation, invoice or other arrangement under which the Customer receives recurring access to Products or Services for a recurring charge. 

 1.26 “Valid Non-Renewal Notice” means written notice given by the Customer in accordance with these Conditions confirming that the Customer does not wish the relevant Subscription Contract to renew at the next renewal date, provided that such notice is received by ESG or the Relevant Group Company at least 3 months before the next renewal date and complies with the notice requirements set out in these Conditions. 

1.27 “Value Added Service” means the provision of a service other than Services, which are agreed in writing between the Customer and the ESG or the Relevant Group Company.  

1.28 “Website Services” means recruitment websites, hosting, web subscriptions, APIs, integrations, domain-related services, website support, website development and associated services supplied, administered, invoicedor collected by ESG or Eclipse Recruitment Websites Ltd. 

2. GROUP COMPANY ARRANGEMENTS

2.1 ESG may perform, procure the performance of, or subcontract the performance of any of its obligations under this Agreement through any Relevant Group Company. ESG or the Relevant Group Company may provide any Product or Service, issue any invoice, collect any payment, administer any account, provide support, manage renewals, or exercise any right under this Agreement. 

2.2 The Relevant Group Company may be identified on the applicable Order Form, invoice, renewal notice, subscription confirmation, statement of account, Direct Debit mandate, or other written communication issued to the Customer. 

 2.3 Where a Relevant Group Company is identified as being responsible for supplying, licensing, administering, invoicing or collecting payment for any Products or Services, the Customer shall pay all sums due in respect of those Products or Services to that Relevant Group Company or to such other payee as may be specified on the applicable invoice or written payment instruction.  

2.4 Any change in the identity of the entity issuing invoices, collecting payment, administering the Customer’s account or providing support shall not affect the Customer’s obligation to pay all sums properly due in respect of Products or Services supplied, licensed, made available, administered or provided under this Agreement.  

2.5 Unless expressly stated otherwise in writing, references in these Conditions to ESG shall include the Relevant Group Company where the context requires, including for the purposes of supplying Products or Services, issuing invoices, collecting payments, providing support, administering accounts, enforcing payment obligations, suspending Services, terminating the Agreement, and enforcing rights and remedies under these Conditions. 

2.6 Nothing in this Clause 2 shall prevent ESG or any Relevant Group Company from assigning the benefit of any debt, invoice, right to payment or other contractual right in accordance with these Conditions. 

2.7 Nothing in this Clause 2 shall reduce or release the Customer from any obligation to pay sums due under this Agreement, whether such sums are invoiced by ESG, a Relevant Group Company, or any person to whom the relevant debt or invoice has been assigned. 

3. ORDERS AND QUOTATIONS 

3.1 All orders are subject to acceptance by ESG or the Relevant Group Company. ESG and each Relevant Group Company reserve the right to refuse to accept any order. 

3.2 Any quotation made by ESG or the Relevant Group Company is subject to ESG or the Relevant Group Company obtaining satisfactory credit and payment references in respect of the Customer. A quotation shall, unless otherwise stated in the quotation, remain open for 30 days only, after which time it shall lapse and cease to be binding on ESG or the Relevant Group Company. 

3.3 Every quotation is subject to:

3.3.1 revision by ESG or the Relevant Group Company for errors and omissions; 

3.3.2 increase in price in accordance with condition 3.4 below and; 

3.3.3 the provision of products of a similar equivalent nature as may be agreed with the Customer. 

3.4 Prices are based on current costs and charges for the Products or Services at the date of quotation, or at such earlier date as may be specified by ESG or the Relevant Group Company. Prices may be increased by ESG or the Relevant Group Company to take into account any change in such costs or charges for the Products or Services. 

3.5 Confirmed purchase orders for Products or Services shall be invoiced at the price in effect at the time of acceptance of the order by ESG or the Relevant Group Company. Unless otherwise agreed in writing, prices exclude delivery charges, taxes, Value Added Tax, duties, levies and any other applicable charges. 

3.6 ESG or the Relevant Group Company reserves the right to require a deposit from the Customer upon acceptance of an order, the details of which shall be set out in the quotation, Order Form or other written communication. 

4. DELIVERY AND ACCEPTANCE

4.1 Any delivery date, installation date, commencement date or performance date given by ESG or the Relevant Group Company is an estimate only. Time for delivery, installation, commencement or performance shall not be of the essence unless expressly agreed in writing by ESG or the Relevant Group Company. ESG or the Relevant Group Company shall use reasonable endeavours to meet any estimated date but shall not be liable for any delay. 

 4.2 ESG or the Relevant Group Company shall, in the absence of agreement to the contrary, be entitled to use any method or means of delivery, installation, deployment or provision of the Products or Services as it may reasonably select, and may deliver, deploy or provide the Products or Services in such quantities, stages, phases or instalments as it considers appropriate. 

 4.3 No claim in respect of any loss of, or damage to, Products in transit shall be accepted by ESG or the Relevant Group Company unless notified to ESG or the Relevant Group Company in writing within such reasonable period as ESG or the Relevant Group Company may specify. 

4.4 ESG or the Relevant Group Company shall not be responsible for any installation work, configuration, implementation or other work carried out otherwise than by ESG, the Relevant Group Company, or their authorised employees, agents, contractors or subcontractors.  

4.5 Any equipment, systems, software, network access, data, facilities or materials owned, controlled or provided by the Customer and made available for use by ESG, the Relevant Group Company, or their authorised employees, agents, contractors or subcontractors to facilitate delivery, installation, implementation, configuration or provision of the Products or Services shall be made available free of charge and in a timely manner. 

 4.6 The Customer shall be responsible for ensuring that it has, and continues to maintain, all hardware, software, systems, network connections, internet connectivity, permissions, licences, consents, data and operating environments required for the Products or Services, including any minimum technical specifications notified by ESG or the Relevant Group Company. 

 4.7 ESG or the Relevant Group Company may charge the Customer on a time and materials basis, at its then-current rates, for any additional work, delay, reconfiguration, reinstallation, rescheduling or other costs arising from: 

4.7.1 the Customer’s failure to comply with its obligations under these Conditions; 

4.7.2 any change in the Customer’s requirements; 

4.7.3 any failure or inadequacy of the Customer’s equipment, systems, software, data, network, connectivity or operating environment; or 

4.7.4 any act, omission, delay or default of the Customer or any third party acting on behalf of the Customer. 

4.8 Where ESG or the Relevant Group Company is requested to install, implement or configure Software, acceptance of the Software shall take place on the earlier of: 

4.8.1 the date on which the Customer signs or otherwise confirms acceptance of any installation, implementation, testing or completion report; 

4.8.2 the date on which the Software is first used by the Customer for live operational purposes; or 

4.8.3 seven days after ESG or the Relevant Group Company notifies the Customer that the Software has been installed, implemented, configured or made available for use, unless the Customer notifies ESG or the Relevant Group Company in writing within that period of any material failure of the Software to operate substantially in accordance with the applicable Specification. 

4.9 Where ESG or the Relevant Group Company has not been requested to install, implement or configure the Software, acceptance of the Software shall be deemed to take place on delivery of the Software, provision of access credentials, activation of the relevant account, or the date on which the Software is otherwise made available to the Customer. 

4.10 If the Customer uses the Software, Products or Services before formal acceptance, other than solely for agreed testing purposes, the Software, Products or Services shall be deemed accepted on the date of first such use.  

4.11 The Customer shall not be entitled to reject, delay acceptance of, or raise any objection to the Software, Products or Services by reason only of any failure to process data, perform functions or meet requirements not expressly set out in the applicable Order Form, Specification or written agreement between the parties. 

4.12 Acceptance of the Software, Products or Services shall not affect the Customer’s obligation to pay all charges due under the Agreement.

5. SERVICES

5.1 ESG or the Relevant Group Company and the Customer shall produce and agree the Specification of Services where applicable. 

5.2 ESG or the Relevant Group Company and the Customer shall each dedicate the necessary resources and use reasonable commercial efforts to meet their respective obligations and deadlines set out in the Specification. 

5.3 Any delay, adjustment, additional work, wasted time, rescheduling or additional cost arising from the Customer’s delay, failure to provide information, failure to complete assigned tasks, change in requirements, or other act or omission shall be the responsibility of the Customer. The Customer shall pay ESG or the Relevant Group Company for all costs, expenses, wasted time and rescheduled resources incurred as a result, at ESG’s or the Relevant Group Company’s then-current rates plus expenses 

5.4 The number of Chargeable Days estimated to be required to complete the Services as detailed in the Order Form shall be reviewed following finalisation of the Specification and is based upon the following assumptions:

5.4.1 the scope of the tasks to be performed by ESG or the Relevant Group Company will not exceed those stated in the Specification; 

5.4.2 the Customer will perform and complete its assigned tasks required by the Specification in a timely manner; 

5.4.3 the Customer will provide all information, data, access, approvals, co-operation and resources reasonably required by ESG or the Relevant Group Company 

5.4.4 the Customer will not suspend, delay or obstruct the project in any manner; 

5.4.5 Services will be performed during normal working hours, being Monday to Friday 9.00am to 5.30pm, excluding public holidays in England, unless otherwise agreed in writing; and

5.4.6 the Specification cannot be amended once agreed except in accordance with the change control procedure set out in this Clause 5. 

5.5 Change Control.

5.5.1 ESG or the Relevant Group Company may at any time recommend, and the Customer may at any time request, changes to any of the assumptions set out in Clause 5.4, to any part of the Specification, or to any other provision of this Agreement. 

5.5.2 Any Customer request for a change must be made in writing and shall be treated as a change request. 

5.5.3 ESG or the Relevant Group Company shall notify the Customer in writing within 5 working days of receipt of a change request, or the making of a change recommendation, of the time reasonably required to investigate the implications of implementing the proposed change, together with any costs to be charged to the Customer for undertaking such investigation. 

5.5.4 Following any investigation, ESG or the Relevant Group Company shall provide a written response showing the effect of the proposed change, including where applicable: 

(a) a revised estimate of the number of Chargeable Days required to complete the Services;   

(b) A revised project timeline

(c) any additional charges, costs or expenses that will be incurred;

(d) any impact on the Specification, Products, Services, subscription, licences, support, hosting or other contractual matters; and

(e) any other relevant conditions attaching to the proposed change.

5.5.5 ESG or the Relevant Group Company shall use reasonable endeavours to provide the written response within 10 working days, or such longer period as may be agreed, following receipt of written instruction from the Customer to investigate the proposed change. 

5.5.6 Should the Customer wish to proceed with the proposed change, the Customer must instruct ESG or the Relevant Group Company in writing as soon as reasonably practicable following receipt of the written response and, in any event, not later than 10 working days after receipt of the written response unless otherwise agreed in writing. 

5.5.7 No change shall be binding unless agreed in writing by ESG or the Relevant Group Company. Once agreed, those parts of the Agreement affected by the change shall be deemed modified in accordance withthe written response. 

5.5.8 Until any change is formally agreed in writing, each party shall continue to perform its obligations under the Agreement as if the change had not been proposed, unless otherwise agreed in writing by ESG or the Relevant Group Company. 

5.6 Key Personnel, Contractors and Subcontractors 

5.6.1 Personnel, contractors and subcontractors provided by ESG or the Relevant Group Company to perform Services pursuant to the Agreement shall have appropriate technical and application skills to enable them to perform their duties. 

5.6.2 Services shall be performed in a competent and workmanlike manner. 

5.6.3 ESG or the Relevant Group Company shall use reasonable efforts to ensure continuity in staffing of key personnel, but shall be entitled to replace personnel, contractors or subcontractors where reasonably necessary. 

5.6.4 Services may be performed by ESG, the Relevant Group Company, any Group Company, or their respective employees, agents, contractors or subcontractors. 

6. FEES AND PAYMENT

6.1 All charges, fees, subscriptions, expenses and other sums payable by the Customer under this Agreement shall be paid to ESG, the Relevant Group Company, or such other payee as may be specified on the applicable invoice, statement of account, Direct Debit mandate, payment instruction or other written communication. 

 6.2 Unless otherwise agreed in writing by ESG or the Relevant Group Company, all invoices shall be payable within 7 days of the earlier of: 

6.2.1 the date of the relevant invoice; 

6.2.2 the date of any other written claim for payment; or 

6.2.3 the applicable Billing Period Start date in respect of Subscription charges. 

6.3 Subscription charges shall be payable in advance for the relevant Billing Period, subscription period, renewal period or other period specified in the applicable Order Form, invoice, renewal notice, subscription confirmation or other written communication. 

6.4 Charges for Services, as detailed in the Order Form, quotation, Specification or other written agreement, shall be paid by the Customer in advance unless otherwise agreed in writing by ESG or the Relevant Group Company. 

6.5 Charges for Licence, Support, Hosting, Software Services, Website Services or any other Subscription Contract shall be paid by the Customer in advance annually, monthly or otherwise as agreed in writing between the Customer and ESG or the Relevant Group Company. 

6.6 The type of Subscription, Product or Service supplied to the Customer shall determine the Relevant Group Company responsible for invoicing and collecting payment. Unless otherwise notified in writing by ESG or the Relevant Group Company: 

6.6.1 Software Services, software subscriptions, software licences, support, training, implementation and related services may be invoiced and collected by Eclipse Recruitment Software Ltd; and  

6.6.2 Website Services, recruitment websites, hosting, APIs, integrations, web subscriptions, domain-related services and associated services may be invoiced and collected by Eclipse Recruitment Websites Ltd

6.7 ESG or the Relevant Group Company may notify the Customer from time to time of the Relevant Group Company responsible for any Subscription, Product or Service. The Relevant Group Company may be identified on the applicable Order Form, invoice, renewal notice, subscription confirmation, Direct Debit mandate, payment instruction or other written communication issued to the Customer. 

6.8 An active and valid Direct Debit mandate shall be a condition of the Customer receiving and continuing to receive any Subscription, Subscription Contract, Licence, Support, Hosting, Software Services, Website Services or other recurring Products or Services, unless otherwise agreed in writing by ESG or the Relevant Group Company. 

6.9 Where the Customer receives Subscriptions, Products or Services from more than one Relevant Group Company, the Customer shall complete, maintain and keep in force a valid Direct Debit mandate in favour of each Relevant Group Company. 

6.10 Unless otherwise agreed in writing by ESG or the Relevant Group Company, all Subscription charges shall be collected by Direct Debit by the Relevant Group Company. 

6.11 The Customer shall complete, maintain and keep in force each required Direct Debit mandate for the duration of the applicable Subscription Contract. The Customer shall not cancel, amend or otherwise interfere with any Direct Debit mandate without first agreeing an alternative payment arrangement in writing with ESG or the Relevant Group Company. 

6.12 Failure by the Customer to complete, maintain or keep in force a valid Direct Debit mandate for each Relevant Group Company providing, administering, invoicing or collecting payment for Products or Services supplied to the Customer shall constitute a payment default and a material breach of these Conditions. 

6.13 Where a Direct Debit payment fails, is cancelled, recalled, rejected, reversed or otherwise not received when due, ESG or the Relevant Group Company may require immediate payment by an alternative method and may suspend the relevant Products or Services in accordance with these Conditions. 

6.14 ESG or the Relevant Group Company may refuse to activate, renew, continue, reinstate or provide any Subscription Contract, Licence, Support, Hosting, Software Services, Website Services or other recurring Products or Services unless and until the Customer has completed and maintains a valid Direct Debit mandate in favour of each Relevant Group Company. 

6.15 The Customer acknowledges that the requirement to maintain a valid Direct Debit mandate is an ongoing condition of receiving Subscription-based or recurring Products or Services and is not satisfied solely by making individual manual payments unless ESG or the Relevant Group Company has agreed an alternative payment arrangement in writing. 

6.16 If the Customer fails to make full payment of any amount due under this Agreement by the due date for payment, ESG, the Relevant Group Company or any assignee of the relevant debt shall, without prejudice to any other right or remedy available to it, be entitled to:

6.16.1 charge interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time, or such other rate as may be permitted under the Late Payment of Commercial Debts (Interest) Act 1998; 

6.16.2 recover any fixed sum, reasonable costs, charges and expenses incurred in connection with the recovery of overdue sums, including legal costs, collection costs and administrative costs; 

6.16.3 suspend or cancel further deliveries, licences, subscriptions, access, hosting, support or other Products or Services; 

6.16.4 suspend performance of any existing obligation under this Agreement; 

6.16.5 suspend or cancel any existing licence agreement, Subscription Contract or order then subsisting between the Customer and ESG or the Relevant Group Company; and 

6.16.6 withdraw any discounts, credits, incentives or free product offers associated with the relevant order or subscription and amend the invoice amount accordingly to the full pre-discount price. 

6.17 The Customer shall notify ESG or the Relevant Group Company in writing within 7 days of receipt of an invoice if the Customer believes that invoice to be incorrect, setting out full details of the reason for dispute. If the Customer fails to notify ESG or the Relevant Group Company within that period, the Customer shall be deemed to have accepted the invoice and shall not be entitled to raise any objection to it except in the case of manifest error or fraud. 

6.18 Where the Customer disputes part only of an invoice, the Customer shall pay the undisputed amount in accordance with these Conditions. The Customer shall not be entitled to withhold payment of any undisputed amount by reason of a dispute relating to another invoice, another Product or Service, or another part of the same invoice. 

6.19 The Customer shall pay all sums due under this Agreement without set-off, deduction, counterclaim or withholding, except as required by law. 

6.20 Products shall remain the property of ESG or the Relevant Group Company until the Customer has paid in full all amounts owed by the Customer in respect of those Products. In the event of non-payment, ESG or the Relevant Group Company may, where applicable and to the extent permitted by law, enter the Customer’s premises and take possession of the Products. This right shall continue until payment in full has been received. 

6.21 In the event that the Customer pays in a currency other than UK Sterling, ESG or the Relevant Group Company reserves the right to charge a £50 administration fee to cover currency fluctuations, conversion costs, bank charges and related administrative costs. 

6.22 ESG, the Relevant Group Company or any assignee of the relevant debt may issue invoices, statements of account, payment reminders and payment instructions in respect of any sums due from the Customer. 

6.23 Invoices may be issued by ESG or the Relevant Group Company responsible for supplying, licensing, administering, invoicing or collecting payment for the applicable Products or Services. 

6.24 Payment by the Customer shall only be deemed received when cleared funds are received into the bank account nominated by ESG, the Relevant Group Company or any assignee of the relevant debt. 

6.25 Any change in the bank account, payment method, invoicing entity, Relevant Group Company or payment collection arrangements notified to the Customer by ESG or the Relevant Group Company shall not affect the Customer’s obligation to pay all sums properly due. 

6.26 ESG or the Relevant Group Company reserves the right to vary all charges to the Customer by giving one month’s written notice. Any variation shall take effect on the earlier of the Subscription Contract auto-renewal date, the next anniversary of the contract commencement date, or such other date as may be specified in the notice. 

6.27 For Customers of Hosting, SaaS, Website Services, API Services or other usage-based Services, itemised details of excess usage of bandwidth, API endpoint calls, data storage, hosting resources, support usage or any other relevant usage may be made available to the Customer. ESG or the Relevant Group Company reserves the right to make an additional charge for both the excess usage and the provision of such details. 

6.28 All charges and tariffs are quoted exclusive of Value Added Tax and any other applicable taxes, duties or levies, which shall be payable by the Customer in addition at the applicable rate. 

7. CANCELLATION

7.1 Subject to Clause 7.2, the Customer shall have 7 days in which to cancel any order from the date of acceptance of the order by ESG or the Relevant Group Company.  

7.2 The Customer shall not be entitled to cancel any order where ESG or the Relevant Group Company has commenced performance, delivery, implementation, configuration, installation, licensing, activation or provision of the relevant Products or Services, unless otherwise agreed in writing by ESG or the Relevant Group Company. 

7.3 In the event of cancellation by the Customer of all or any part of an order after the cancellation period in Clause 7.1 has expired, or after ESG or the Relevant Group Company has commenced performance in accordance with Clause 7.2, the Customer shall, if required by ESG or the Relevant Group Company, pay a cancellation charge equal to 50% of the order value. 

7.4 ESG or the Relevant Group Company shall also be entitled to retain any deposit, upfront payment or initial payment made by the Customer in respect of the cancelled order. 

7.5 The Customer may not cancel, alter, reduce, downgrade or otherwise vary the terms of a Subscription Contract after the commencement date of the Subscription Contract or following the automatic renewal of a Subscription Contract, unless otherwise agreed in writing by ESG or the Relevant Group Company. 

7.6 The Customer may prevent the automatic renewal of a Subscription Contract by serving a Valid Non-Renewal Notice. 

7.7 A Valid Non-Renewal Notice shall take effect only at the end of the then-current Subscription Contract term. The Subscription Contract shall continue in force, and the Customer shall remain liable for all charges, fees, subscriptions and other sums due, until the expiry of the then-current Subscription Contract term. 

7.8 Where the Customer serves a Valid Non-Renewal Notice, all charges for the remainder of the then-current Subscription Contract term shall remain payable in accordance with the agreed payment schedule unless otherwise agreed in writing by ESG or the Relevant Group Company. 

7.9 Where the Customer attempts to cancel, terminate, downgrade, reduce or otherwise vary a Subscription Contract before the end of the then-current term, other than by serving a Valid Non-Renewal Notice, all remaining unbilled Billing Periods, committed charges, subscription charges and other sums associated with the then-current Subscription Contract term shall become immediately payable. 

7.10 Cancellation, attempted cancellation, non-renewal or expiry of any Subscription Contract shall not affect any accrued rights, remedies, obligations or liabilities of ESG, the Relevant Group Company or any assignee of the relevant debt, including the right to recover any sums due from the Customer. 

7.11 Cancellation of a Direct Debit mandate shall not constitute valid cancellation of any order, Subscription Contract, Product or Service. Cancellation, amendment or failure to maintain a Direct Debit mandate shall be dealt with in accordance with Clause 6. 

8. SOFTWARE LICENCE

8.1 A licence is granted only at the time of acceptance of an order for a licence or an order for Products or Services which include a licence. A licence grants the Customer the right only to use the version of the Software current at the time of the grant, unless otherwise agreed in writing by ESG or the Relevant Group Company. 

8.2 If the Customer wishes to use a new version, additional version, upgraded version or additional functionality of the Software, the Customer must order the appropriate licence, subscription or upgrade. Any such licence, subscription or upgrade shall be valid only if the Customer has the appropriate existing licence, subscription or entitlement for the Software. 

8.3 No licence is granted by delivery, installation, configuration, activation, demonstration or provision of access to the Software unless and until the applicable order has been accepted by ESG or the Relevant Group Company. 

8.4 Use of the Software for any purpose other than authorised demonstration or evaluation shall be deemed acceptance of these Conditions and the applicable licence terms. 

8.5 For Legacy Products, the licence is granted on the condition that a parallel Support Subscription Contract is maintained by the Customer for the duration of use. If the Customer fails to maintain the required Support Subscription Contract, ESG or the Relevant Group Company may suspend or terminate the Customer’s right to use the Legacy Product.

8.6 The Software contains proprietary technology of ESG, the Relevant Group Company and/or third parties. No ownership in, title to, or intellectual property rights in the Software are transferred to the Customer. 

8.7 The Software is protected by copyright laws and international treaties. Except as expressly permitted under the applicable licence, the Customer shall not use, copy, reproduce, modify, adapt, translate, distribute, transfer, assign, sub-license, disclose, make available or otherwise exploit the Software in any way. 

8.8 The Customer may use the Software only in accordance with the use rights and limitations of the type of licence or Subscription granted. Such use rights and limitations may be restricted by number of users, user profiles, named users, concurrent users, sites, locations, modules, features, database instances, usage levels or any other restrictions specified by ESG or the Relevant Group Company. 

8.9 The Customer’s right to use the Software is personal, non-exclusive, non-transferable and limited to the right to execute, load, access, copy or transmit the Software only to the extent necessary for permitted use under the applicable licence or Subscription. 

8.10 ESG and the Relevant Group Company do not warrant any software documentation or third-party products except as expressly stated in these Conditions or in writing. 

8.11 The Customer may make only such copies of the Software as are reasonably necessary for permitted use, backup or archival purposes, unless otherwise restricted by the applicable licence terms. Any full or partial copy of the Software and any accompanying documentation must include all copyright, trade mark and other proprietary notices which appear on or in the Software or documentation.

8.12 The Customer may use the Software on a backup processor, backup server or disaster recovery environment only where that use is expressly permitted by the applicable licence or Subscription and only to the extent reasonably necessary for continuity or recovery purposes. 

8.13 Purchase of, or Subscription for, new or additional licences, Products, Software Services or other Eclipse Software Services requires the Customer to accept the Terms and Conditions current at the time of purchase, renewal, order acceptance or receipt of a signed Order Form. 

8.14 These Conditions apply to all licences, Subscriptions, Products and Services ordered, renewed, varied or continued after these Conditions have been notified or made available to the Customer. 

8.15 Where Software Services, software subscriptions, software licences, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 8 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

8.16 The Customer’s right to use the Software is conditional upon the Customer paying all applicable fees, charges and subscriptions when due and maintaining any required Direct Debit mandate in accordance with Clause 6. 

8.17 ESG or the Relevant Group Company may suspend or terminate any licence or right of access to the Software if the Customer fails to pay any sums due, fails to maintain any required Direct Debit mandate, breaches these Conditions, exceeds the permitted scope of use, or uses the Software otherwise than in accordance with the applicable licence or Subscription. 

9. BETA, TRIAL, EVALUATION AND PRE-RELEASE LICENCES 

9.1 ESG or the Relevant Group Company may from time to time provide the Customer with access to beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific versions of Software, Products, Services, features, functionality, integrations, APIs, websites or hosted services. 

9.2 Unless otherwise agreed in writing by ESG or the Relevant Group Company, any beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Product, Service, feature, functionality, integration, API, website or hosted service may be provided for testing, validation, feedback, demonstration, early access, customer-requested development, customer-specific development, phased release or product improvement purposes. 

9.3 The Customer acknowledges that beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Products or Services may not be complete, stable, fully tested, error-free, compatible with all systems or suitable for all use cases. 

9.4 ESG or the Relevant Group Company may modify, suspend, withdraw, replace, restrict, correct, update or discontinue any beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Product, Service, feature, functionality, integration, API, website or hosted service at any time where reasonably necessary for technical, operational, security, legal, commercial, product development or service improvement reasons. 

9.5 Any beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Product or Service is provided “as is” and “as available”, without warranty of any kind, whether express or implied, to the fullest extent permitted by law, except as expressly agreed in writing by ESG or the Relevant Group Company. 

9.6 The Customer may use beta, trial, pilot, pre-release, early-access or customer-specific Software, Products or Services in a live operational environment where such use has been made available, enabled, agreed or authorised by ESG or the Relevant Group Company, including where such functionality has been requested by the Customer or developed specifically for the Customer. 

9.7 Where the Customer uses any beta, trial, pilot, pre-release, early-access or customer-specific Software, Product or Service in a live operational environment, the Customer acknowledges and accepts that such use carries additional risk and remains subject to the limitations, exclusions and risk allocation set out in these Conditions and any applicable Beta Programme Agreement, pilot agreement, trial agreement, evaluation agreement, development agreement, statement of work, Order Form, Subscription Contract or other written authorisation. 

9.8 ESG and the Relevant Group Company shall not be liable for any loss, damage, interruption, data loss, data corruption, business disruption, loss of profits, loss of anticipated savings, loss of goodwill, loss of opportunity, loss arising from reliance on incomplete functionality, or other liability arising from the Customer’s use of, reliance on, or inability to use any beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Product or Service, except to the extent that liability cannot lawfully be excluded. 

9.9 The Customer shall promptly notify ESG or the Relevant Group Company of any errors, bugs, issues, defects, failures, feedback, suggested improvements or enhancement requests identified during beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific use. 

9.10 Any feedback, suggestions, ideas, enhancement requests, bug reports, recommendations, observations or other information provided by the Customer in connection with beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific use may be used by ESG, the Relevant Group Company or any Group Company without restriction, payment, attribution or obligation to the Customer. 

9.11 Unless otherwise agreed in writing, the Customer shall not disclose, publish, benchmark, review, demonstrate, copy, sell, market, transfer or otherwise make available to any third party any beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Product or Service, or any information relating to its performance, quality, features, functionality, roadmap, defects, limitations, development status or release plans. 

9.12 The Customer shall not use any beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Product or Service to develop, procure, assist, support or improve any competing software, product, service, website, API, integration, system or platform. 

9.13 Where the Customer enters into a separate Beta Programme Agreement, pilot agreement, trial agreement, evaluation agreement, development agreement, statement of work or similar written agreement with ESG or the Relevant Group Company, that agreement shall apply in addition to these Conditions. 

9.14 In the event of conflict between these Conditions and any Beta Programme Agreement, pilot agreement, trial agreement, evaluation agreement, development agreement, statement of work or similar written agreement, the more specific terms relating to beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific use shall prevail. 

9.15 Access to beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Products or Services may be withdrawn, suspended or restricted if the Customer breaches this Clause 9, any applicable Beta Programme Agreement, any confidentiality obligation, any licence restriction, any payment obligation or any other provision of these Conditions. 

9.16 Unless otherwise agreed in writing, ESG and the Relevant Group Company shall be under no obligation to make any beta, trial, demonstration, evaluation, pilot, pre-release, test, experimental, early-access or customer-specific Software, Product, Service, feature, functionality, integration, API, website or hosted service generally available, or to continue developing, supporting or maintaining it. 

9.17 The Customer acknowledges that customer-specific development, requested functionality, enhancement work or early-access functionality may be incorporated into ESG’s, the Relevant Group Company’s or any Group Company’s general products, services, roadmap, software, websites, APIs, integrations or platforms, unless expressly agreed otherwise in writing. 

9.18 For the avoidance of doubt, use of the Software, Products or Services for any purpose other than authorised demonstration or evaluation use shall constitute acceptance of these Conditions in accordance with Clause 1 and this Clause 9. 

9.19 Where Software Services, software subscriptions, software licences, support, training, implementation, beta software, early-access features or customer-specific software development are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 9 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

9.20 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services, early-access website features, API pilots or customer-specific website development are supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 9 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

10. USAGE OF HOSTED SERVICES 

10.1 Customers using any Hosting Services, SaaS Services, Website Services, API Services, domain-related services, or other online or hosted services provided, administered or made available by ESG or the Relevant Group Company shall comply with this Clause 10. 

10.2 The Customer shall accept and comply with the Eclipse Software Acceptable Usage Policy as published or made available on the Eclipse Software website from time to time, together with any reasonable technical, security, hosting, platform, API, domain, usage or operational requirements notified by ESG or the Relevant Group Company. 

10.3 The Customer shall not use, access, attempt to access, upload, download, transmit, store, publish, distribute, process or make available any material or data through the Services which: 

10.3.1 is unlawful, fraudulent, defamatory, obscene, offensive, abusive, malicious, threatening or otherwise objectionable; 

10.3.2 infringes the intellectual property rights, privacy rights, data protection rights or other rights of any third party; 

10.3.3 contains viruses, malware, ransomware, spyware, corrupted files, harmful code or other destructive or disruptive components; 

10.3.4 is intended to damage, disable, overburden, impair, circumvent, compromise or interfere with any system, network, service, software, website, API, security measure or infrastructure; or 

10.3.5 would place ESG, the Relevant Group Company or any third-party hosting, network, platform, domain, API or technology provider in breach of any law, regulation, contract, acceptable use policy or third-party terms. 

10.4 The Customer shall not use or permit the use of the Services:

10.4.1 in an unlawful manner; 

10.4.2 in breach of any applicable laws, regulations or codes of practice; 

10.4.3 in a manner which may damage the reputation, systems, services, infrastructure or business of ESG, the Relevant Group Company or any Group Company; 

10.4.4 to send, procure, enable or facilitate unsolicited bulk communications, spam, phishing, spoofing or other abusive messaging; 

10.4.5 to attempt to gain unauthorised access to any system, network, account, data, website, API, software or service; or 

10.4.6 in breach of any security, usage, rate limit, API limit, storage limit, bandwidth limit or other reasonable restriction imposed by ESG, the Relevant Group Company or any relevant third-party provider. 

10.5 The Customer shall keep all usernames, passwords, API keys, access tokens, authentication credentials, administrator accounts and other access details confidential and secure. The Customer shall not disclose such details to any unauthorised person and shall use reasonable endeavours to prevent unauthorised access to the Services. 

10.6 The Customer shall be responsible for all activity carried out using its accounts, users, access credentials, API keys, websites, domains, systems or integrations, whether authorised by the Customer or not, except to the extent caused directly by ESG’s or the Relevant Group Company’s breach of these Conditions. 

10.7 The Customer shall notify ESG or the Relevant Group Company immediately if it becomes aware of, or reasonably suspects, any unauthorised access, security breach, compromised credentials, misuse of the Services, data incident, domain issue, API misuse or other matter which may affect the security, integrity or operation of the Services. 

10.8 The Customer shall keep ESG or the Relevant Group Company informed of any change to the Customer’s address, billing details, technical contact details, domain ownership details, administrative contacts, payment details and any other information reasonably required for the provision, administration, billing or support of the Services. 

10.9 The Customer shall immediately cease to use any Internet Protocol Address, domain configuration, DNS setting, hosting environment, access credential, API endpoint, integration, account, website, server resource or other technical resource allocated, provided or made available by ESG or the Relevant Group Company upon termination, expiry or suspension of the Agreement or the relevant Service. 

10.10 The Customer acknowledges that ESG or the Relevant Group Company may reallocate, withdraw, disable, suspend, change or replace any Internet Protocol Address, hosting resource, API endpoint, access credential, account, technical resource or other facility provided to the Customer where reasonably required for operational, technical, security, legal, regulatory, third-party provider or service continuity reasons. 

10.11 The Customer shall not announce, route, advertise, publish, transfer, repoint or otherwise use any Internet Protocol Address, domain, DNS record, endpoint, network route or technical resource allocated to or by the Customer as part of any autonomous system or third-party network without the prior written consent of ESG or the Relevant Group Company. 

10.12 Where the Customer submits, routes, advertises, integrates or connects any website, domain, IP address, API, system, data feed or technical resource to or through any third-party service, autonomous system, marketplace, platform, network, supplier or provider, the Customer shall be responsible for any direct costs, charges, liabilities or losses incurred by ESG or the Relevant Group Company as a result, except to the extent caused directly by ESG’s or the Relevant Group Company’s breach of these Conditions. 

10.13 The Customer shall ensure that it has all rights, permissions, licences, consents and lawful bases required for any data, content, domain, website material, integration, API usage, third-party service connection or other material supplied, uploaded, transmitted, hosted, processed or made available by or on behalf of the Customer through the Services. 
10.14 ESG or the Relevant Group Company may suspend, interrupt, restrict or reduce access to the Products or Services for planned maintenance, emergency maintenance, upgrades, updates, patches, releases, security work, infrastructure changes, backups, system testing, operational improvements or other technical or service-related reasons. 

10.15 ESG or the Relevant Group Company shall use reasonable endeavours to provide advance notice of planned maintenance where reasonably practicable, but shall not be required to provide advance notice for emergency maintenance, urgent security work, supplier-related issues, infrastructure issues or other circumstances requiring immediate action. 

10.16 No service credits, refunds, fee reductions or other compensation shall be payable in respect of downtime, interruption, suspension, maintenance, reduced availability or service degradation unless expressly agreed in writing by ESG or the Relevant Group Company. 

10.17 ESG or the Relevant Group Company may suspend, restrict or disable any Hosting Services, SaaS Services, Website Services, API Services, domain-related services or other online services without liability where ESG or the Relevant Group Company reasonably believes that: 

10.17.1 the Customer is in breach of this Clause 10; 

10.17.2 the Services are being used unlawfully or in breach of any Acceptable Usage Policy; 

10.17.3 suspension is necessary to protect the security, integrity, availability or performance of any system, website, API, network, server, software, data or service; 

10.17.4 suspension is required by law, regulation, court order, regulator, law enforcement authority or third-party provider; 

10.17.5 continued provision of the Services may expose ESG, the Relevant Group Company or any Group Company to liability; or 

10.17.6 the Customer has failed to pay any sums due or failed to maintain any required Direct Debit mandate in accordance with Clause 6.

10.18 ESG or the Relevant Group Company shall use reasonable endeavours to notify the Customer of any suspension under Clause 10.17 where it is lawful and reasonably practicable to do so, but shall not be required to give prior notice where immediate suspension is reasonably necessary for security, operational, legal, regulatory or third-party provider reasons. 

10.19 Suspension, restriction or disabling of any Services under this Clause 10 shall not affect the Customer’s obligation to pay all charges due under the Agreement. 

10.21 Where Hosting Services, Website Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 10 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

11. EXPORT CONTROLS AND SANCTIONS

11.1 The Customer acknowledges that the Products, Software, Services, Hosted Services, SaaS Services, API Services, documentation, technical data, information and related materials supplied, licensed or made available by ESG or the Relevant Group Company may be subject to export control laws, trade sanctions, import restrictions, technology transfer restrictions and other applicable laws and regulations. 

11.2 The Customer shall not use, access, export, re-export, transfer, make available, disclose, supply or permit access to any Products, Software, Services, Hosted Services, SaaS Services, API Services, documentation, technical data, information or related materials in breach of any applicable export control laws, trade sanctions, import restrictions, technology transfer restrictions or other applicable laws and regulations. 

11.3 The Customer shall be responsible for ensuring that its use of the Products and Services, including access by its users, employees, agents, contractors, customers, group companies and any other third parties, complies with all applicable export control laws, trade sanctions and restrictions. 

11.4 The Customer shall not use, access, make available or permit access to the Products or Services from any country, territory, organisation or person where such use, access or provision would be prohibited or restricted by applicable law, trade sanctions or export control regulations. 

11.5 The Customer shall obtain and maintain all licences, consents, permissions and approvals required for any export, re-export, transfer, access, use or disclosure of the Products, Software, Services, documentation, technical data or related materials by or on behalf of the Customer. 

11.6 The Customer shall not do, or omit to do, anything which causes or may cause ESG, the Relevant Group Company or any Group Company to breach any export control laws, trade sanctions, import restrictions, technology transfer restrictions or other applicable laws and regulations. 

11.7 ESG or the Relevant Group Company may suspend, restrict or terminate access to any Products or Services immediately and without liability where ESG or the Relevant Group Company reasonably believes that continued provision of the Products or Services may breach, or expose ESG, the Relevant Group Company or any Group Company to a risk of breaching, any export control laws, trade sanctions, import restrictions, technology transfer restrictions or other applicable laws or regulations. 

11.8 The Customer shall promptly provide ESG or the Relevant Group Company with such information as ESG or the Relevant Group Company may reasonably request to verify compliance with this Clause 11, including information concerning the Customer’s location, users, end users, intended use, access locations, export destinations and any applicable licences or consents.

11.9 The Customer shall indemnify ESG, the Relevant Group Company and each Group Company against all losses, liabilities, damages, costs, claims, expenses, fines and penalties arising from any breach by the Customer of this Clause 11. 

11.10 The obligations in this Clause 11 shall survive termination or expiry of the Agreement. 

12. INTELLECTUAL PROPERTY AND SOFTWARE RESTRICTIONS

12.1 All intellectual property rights in the Software, Products, Services, documentation, digital materials, updates, modifications, enhancements, developments, configurations, activation keys, licence control utilities, databases, templates, designs, source code, object code, APIs, website materials, integrations and any related materials supplied, developed, configured or made available by ESG, the Relevant Group Company or any third-party supplier shall remain the property of ESG, the Relevant Group Company or the applicable third-party owner or licensor. 

12.2 Except for the limited rights expressly granted to the Customer under these Conditions, the applicable licence, Subscription Contract or written agreement, the Customer shall acquire no ownership rights, title or intellectual property rights in or to the Software, Products, Services, documentation, digital materials or related materials. 

12.3 Activation keys, licence keys, access credentials, licence control utilities, API keys and other technical controls may be installed, enabled or used only in accordance with the applicable licence, Subscription Contract or written authorisation issued by ESG or the Relevant Group Company. 

12.4 The Customer shall not modify, disable, bypass, circumvent, make inoperable, interfere with, copy, share, transfer, reverse engineer or misuse any activation key, licence key, licence control utility, access credential, usage restriction, technical protection measure, API key or other security or licensing mechanism. 

12.5 The Customer shall not disclose, make available, transfer, license, sub-license, assign, resell, distribute or otherwise provide access to the Software, Products, Services, documentation or digital materials to any third party except to the Customer’s employees, officers, agents, contractors or authorised users who require access for the Customer’s internal business purposes and who are subject to obligations no less restrictive than those set out in these Conditions. 

12.6 The Customer shall not transfer, license, sub-license, assign, rent, lease, lend, sell, resell, commercialise, make available as a service bureau, timeshare or managed service, or otherwise exploit any licence, Software, Product, Service, documentation or digital material without the prior written consent of ESG or the Relevant Group Company. 

12.7 Except to the extent that such acts cannot be prohibited by law, the Customer shall not reverse compile, disassemble, decompile, reverse engineer, translate, adapt, merge, modify or create derivative works from the Software, Products, Services, APIs, databases, documentation or related materials. 

12.8 The Customer shall not copy the Software, Products, Services, documentation or related materials except to the extent expressly permitted by these Conditions or the applicable licence. Where copying is permitted, all copyright notices, trade mark notices, proprietary notices and supplier notices must be reproduced in full on all copies. 

12.9 The Customer shall maintain complete and accurate records identifying the Software, licences, Subscriptions, users, usage, installations, access credentials, modules, sites, locations and other relevant licence or usage information. 

12.10 The Customer shall, on reasonable notice, make such records available to ESG, the Relevant Group Company or any applicable third-party developer, owner or licensor for the purpose of verifying compliance with these Conditions and the applicable licence terms. 

12.11 The Customer shall permit ESG or the Relevant Group Company to access the Customer’s systems, remotely or otherwise, and to use reasonable software tools or technical measures to verify licence compliance, investigate misuse, support the Software or Services, or protect the intellectual property rights of ESG, the Relevant Group Company or any third-party owner or licensor. 

12.12 The Customer acknowledges that third-party software, products, services, APIs, hosting platforms, integrations, plug-ins or other third-party materials may be supplied subject to separate third-party licence terms, usage terms, acceptable use policies, support terms or other conditions. 

12.13 The Customer shall comply with all applicable third-party terms notified to it or made available by ESG, the Relevant Group Company or the relevant third-party provider. The Customer acknowledges that a third-party owner, developer, supplier or licensor may enforce its rights directly against the Customer where permitted by law or by the applicable third-party terms. 

12.14 Software, documentation, digital materials, updates, modifications, enhancements, developments, configurations, integrations, website materials or other materials specially developed, configured or supplied for the Customer shall remain the property of ESG, the Relevant Group Company, the applicable developer or the applicable third-party owner unless expressly agreed otherwise in writing. 

12.15 Subject to payment of all applicable fees and compliance with these Conditions, ESG or the Relevant Group Company grants to the Customer a non-exclusive, non-transferable, revocable right to use such specially developed or configured materials solely for the Customer’s internal business purposes and only for the number of users, sites, licences, modules, domains, platforms or usage scope specified in the applicable Order Form, Specification, Subscription Contract or written agreement. 

12.16 Where any specially developed or configured material consists of, incorporates, interfaces with or depends upon any Software, Products, Services, third-party software, APIs, templates, libraries, frameworks, databases or pre-existing materials owned by ESG, the Relevant Group Company or any third party, the Customer’s use of those materials shall be subject to these Conditions and any applicable third-party terms. 

12.17 ESG or the Relevant Group Company may suspend or terminate any licence, Subscription, access right or right of use granted to the Customer if the Customer breaches these Conditions, breaches any applicable licence terms, exceeds the permitted scope of use, fails to pay any sums when due, fails to maintain any required Direct Debit mandate, or infringes or threatens to infringe any intellectual property rights of ESG, the Relevant Group Company or any third-party owner or licensor. 

12.18 Upon termination or expiry of any licence, Subscription Contract, Product or Service, the Customer shall immediately cease using the relevant Software, Products, Services, documentation, digital materials, activation keys, access credentials and related materials and shall, at ESG’s or the Relevant Group Company’s option, return, delete, destroy or disable all copies in the Customer’s possession or control. 

12.19 The Customer shall promptly certify in writing, if requested by ESG or the Relevant Group Company, that it has complied with its obligations under Clause 12.18. 

12.20 Where Software Services, software licences, software subscriptions, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 12 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

12.21 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 12 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

13. SUPPORT 

13.1 Where support is not included as part of a Software Subscription Contract, each copy of the Licensed Software shall be supported at all times by a separate Support Subscription Contract. 

13.2 Each Support Subscription Contract shall renew automatically for the same term as the most recently agreed Subscription Contract unless terminated in accordance with these Conditions. 

13.3 Subject to receipt of the relevant Support Charges, Subscription Charges and maintenance by the Customer of any required Direct Debit mandate in accordance with Clause 6, ESG or the Relevant Group Company shall provide and the Customer shall accept the Support Services during the applicable Support Period. 

13.4 ESG’s or the Relevant Group Company’s obligation to provide Support Services is dependent on: 

13.4.1 the continued existence of the relevant Licence or Subscription; 

13.4.2 the Customer paying all sums due under the Agreement when due; 

13.4.3 the Customer maintaining any required Direct Debit mandate; 

13.4.4 the Customer complying with these Conditions; and 

13.4.5 the Customer using the Software, Products or Services within the permitted scope of use. 

13.5 If the relevant Licence or Subscription is suspended, terminated or expires for any reason, ESG’s or the Relevant Group Company’s obligation to provide Support Services shall cease automatically unless otherwise agreed in writing. 

13.6 Any corrected, modified or updated versions of the Software, Documentation, configuration, website, hosted environment, API, integration or other materials supplied to the Customer pursuant to the Support Services shall be deemed to form part of the Licensed Materials or relevant Products or Services and shall be subject to these Conditions. 

13.7 The Support Commencement Date shall be the date of acceptance, installation, activation, go-live, renewal or other commencement date specified in the applicable Order Form, Subscription Contract or written communication. 

13.8 The Support Charge is payable annually or by instalments in advance, depending on the agreement between the Customer and ESG or the Relevant Group Company. 

13.9 Where Support Charges are payable by instalments, they shall be paid on the same date of each applicable Billing Period or as otherwise specified in the applicable Order Form, invoice, renewal notice or subscription confirmation. 

13.10 All Support Charges forming part of a Subscription Contract shall be payable by Direct Debit unless otherwise agreed in writing by ESG or the Relevant Group Company. 

13.11 The Customer shall maintain a valid Direct Debit mandate in favour of each Relevant Group Company responsible for providing, administering, invoicing or collecting payment for the relevant Support Services in accordance with Clause 6. 

13.12 Support charged on a monthly or recurring basis is for the minimum period stated in the most recent Subscription Contract or, where applicable, until the equivalent minimum period from the most recent auto-renewal date. 

13.13 If the Customer breaches the payment terms, fails to pay any Support Charge or Subscription Charge when due, or fails to maintain any required Direct Debit mandate, all remaining Billing Periods, committed Support Charges and other sums due for the then-current Subscription Contract term shall become immediately payable. 

13.14 The Support Charge shall be as detailed in the pricing schedule in operation at the time of renewal of the Subscription Contract or as otherwise notified in writing by ESG or the Relevant Group Company. 

13.15 The Support Charge purchases support for the number of Licences, users, subscriptions, modules, websites, APIs, hosting environments or other Products or Services specified in the applicable Order Form, Subscription Contract, renewal notice or written agreement. 

13.16 Any Licence, Product or Service not covered by an active Licence Subscription, Support Subscription or other applicable Subscription Contract may be suspended or terminated. 

13.17 Charges for additional or reactivated licences, users, modules, websites, APIs, integrations, environments or other Products or Services shall be charged in accordance with the pricing schedule or rates in operation at the time of addition or reactivation and shall be invoiced accordingly. 

13.18 Helpdesk Support is provided to up to five nominated users per Customer unless otherwise agreed in writing. Such nominated users shall coordinate problem reporting on behalf of the Customer and its non-nominated users. 

13.19 ESG or the Relevant Group Company may require the Customer to replace, update or remove nominated users where reasonably necessary for support, security, administrative or operational reasons. 

13.20 Support Services shall comprise ESG’s or the Relevant Group Company’s reasonable efforts to correct errors in the Software, Products or Services notified to it by the Customer which prevent the Software, Products or Services from functioning substantially in accordance with the applicable user guide, documentation, specification or agreed service description. 

13.21 ESG and the Relevant Group Company do not guarantee that corrections, fixes, workarounds, updates or support responses will be provided within any specific timescale unless expressly agreed in writing. 

13.22 Support Services shall comprise the following, where applicable: 

13.22.1 operating a telephone, email, ticketing or online helpdesk during the normal working hours of ESG’s or the Relevant Group Company’s support office in the UK; 

13.22.2 providing the Customer with details for notification of problems arising from the Software, Products or Services; 

13.22.3 using reasonable efforts to provide corrections, workarounds, guidance or assistance for errors properly notified by the Customer; 

13.22.4 providing assistance on a reasonable-efforts basis by telephone, email, remote access, online meeting, ticketing system or other remote support method; 

13.22.5 assisting the Customer to install, configure or use suitable remote access tools where required for support purposes; 

13.22.6 using remote access facilities, where made available by the Customer, to collect error logs, run diagnostic tools, configure systems, review settings, transfer code, deploy fixes or perform other support activities; 

13.22.7 providing telephone or remote advice on day-to-day enquiries concerning use and operation of the Software, Products or Services to the extent not covered in the Documentation, training material or online help resources; and 

13.22.8 notifying the Customer of updates, fixes or releases as and when generally made available by ESG or the Relevant Group Company. 

13.23 ESG or the Relevant Group Company may charge separately for:

13.23.1 repeat queries which ESG or the Relevant Group Company reasonably considers excessive; 

13.23.2 support required because the Customer has failed to undertake recommended training; 

13.23.3 support outside normal working hours; 

13.23.4 onsite attendance; 

13.23.5 installation, implementation or configuration work; 

13.23.6 support relating to third-party software, third-party systems, customer infrastructure, integrations, APIs, networks, data, hardware, internet connectivity or hosting environments outside ESG’s or the Relevant Group Company’s control; 

13.23.7 support required as a result of Customer error, misuse, negligence or breach of these Conditions; and 

13.23.8 delivery, installation or implementation of updates, fixes or releases where not included within the applicable Subscription Contract. 

13.24 ESG or the Relevant Group Company may at its discretion provide new releases, updates, fixes, patches, modifications or enhancements to the Software, Products or Services. 

13.25 The Customer shall be responsible for installing updates, fixes, patches, releases or other changes where directed by ESG or the Relevant Group Company. 

13.26 ESG or the Relevant Group Company shall not be responsible for supporting the Customer where the Customer has failed to install, apply or implement any update, fix, patch, release or instruction provided or recommended by ESG or the Relevant Group Company. 

13.27 No Support Services shall be provided in respect of any error, issue or problem: 

13.27.1 resulting from any modification, configuration, integration, repair, workaround or change made by any person other than ESG, the Relevant Group Company or their authorised contractors; 

13.27.2 resulting from incorrect use, misuse, negligence, operator error or failure to follow instructions; 

13.27.3 reported by a person who is not one of the Customer’s nominated support contacts or authorised IT provider; 

13.27.4 where the relevant user has not completed training reasonably required or recommended by ESG or the Relevant Group Company; 

13.27.5 arising from or attributable to the Customer’s equipment, hardware, software, network, connectivity, operating environment, third-party systems, data, APIs, integrations, hosting environment or other external cause; 

13.27.6 arising from use of a previous release, version or configuration of the Software, Product or Service more than six months after ESG or the Relevant Group Company has made a later release, version or configuration available; 

13.27.7 arising from the Customer’s failure to maintain any required Licence, Subscription, Support Subscription or Direct Debit mandate; 

13.27.8 arising from any breach by the Customer of these Conditions; or 

13.27.9 arising from any event outside ESG’s or the Relevant Group Company’s reasonable control. 

13.28 To the extent that ESG or the Relevant Group Company provides Support Services or any other services where it is not obliged to do so under this Agreement, ESG or the Relevant Group Company may charge for all costs, time and expenses incurred at its then-current rates. 

13.29 ESG or the Relevant Group Company may suspend Support Services where the Customer fails to pay any sum due, fails to maintain any required Direct Debit mandate, exceeds the permitted scope of use, breaches these Conditions, or where suspension is otherwise permitted under these Conditions. 

13.30 Suspension or termination of Support Services shall not affect the Customer’s obligation to pay all charges due under the Agreement. 

13.31 Where Software Services, software subscriptions, software licences, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 13 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

13.32 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supported, supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 13 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

14. DATA CONVERSION

14.1 In these Conditions, “Data Conversion” means the conversion, import, migration, transformation, formatting, mapping, cleansing or preparation of Customer data into a format compatible with the Software, Products or Services supplied, licensed or made available by ESG or the Relevant Group Company. 

14.2 All Data Conversion activities provided by ESG or the Relevant Group Company shall be undertaken at ESG’s premises, the Relevant Group Company’s premises, remotely, or at such other location as ESG or the Relevant Group Company may reasonably designate. 

14.3 The Customer shall provide ESG or the Relevant Group Company with all information, data, files, database exports, field mappings, documentation, access credentials, technical information and assistance reasonably required to enable ESG or the Relevant Group Company to carry out the Data Conversion. 

14.4 The Customer shall provide all data to be converted in the format, structure, medium and timescale reasonably specified by ESG or the Relevant Group Company. 

14.5 The Customer is responsible for ensuring that all data supplied for Data Conversion is accurate, complete, lawful, properly backed up and suitable for conversion. ESG and the Relevant Group Company shall not be responsible for any error, omission, corruption, duplication, inaccuracy or defect in the source data supplied by or on behalf of the Customer. 

14.6 ESG or the Relevant Group Company may convert a copy or sample of the Customer’s data and provide the results to the Customer for review, testing or approval before conversion, import or deployment of the full or master data set. 

14.7 The Customer shall review and test any converted data, sample conversion, test import or migration output promptly and shall notify ESG or the Relevant Group Company in writing of any material issues within the timescale reasonably specified by ESG or the Relevant Group Company. 

14.8 Upon approval by the Customer of the results of a sample conversion, test import or migration output, or where the Customer fails to notify ESG or the Relevant Group Company of any material issue within the specified timescale, ESG or the Relevant Group Company may proceed with conversion, import or deployment of the full or master data set. 

14.9 The risk in the conversion, import, migration or deployment of Customer data shall pass to the Customer upon approval or deemed approval under Clause 14.8. 

14.10 ESG and the Relevant Group Company shall not be responsible for any loss, corruption, degradation, duplication, omission or alteration of data arising from Data Conversion except to the extent caused directly by ESG’s or the Relevant Group Company’s failure to exercise reasonable skill and care. 

14.11 Backup of data shall at all times remain the responsibility of the Customer. The Customer shall retain secure, complete and recoverable copies of all original source data before providing any data to ESG or the Relevant Group Company for Data Conversion. 

14.12 The Customer shall ensure that it has all necessary rights, permissions, consents and lawful bases required to provide the data to ESG or the Relevant Group Company for Data Conversion and for ESG or the Relevant Group Company to process such data for that purpose. 

14.13 Charges for Data Conversion shall be as stated on the Order Form, quotation, Specification or other written agreement. 

14.14 ESG or the Relevant Group Company may charge the Customer for any additional costs, time or expenses incurred as a result of: 

14.14.1 the Customer providing incomplete, inaccurate, corrupt, inconsistent, duplicated or unsuitable data; 

14.14.2 the Customer failing to provide data in the required format, structure, medium or timescale; 

14.14.3 changes to the Customer’s requirements; 

14.14.4 additional mapping, cleansing, manipulation, investigation, testing or reconciliation work; 

14.14.5 delays caused by the Customer or any third party acting on behalf of the Customer; or 

14.14.6 any requirement to repeat or amend a Data Conversion following Customer approval or deemed approval. 

14.15 Unless expressly agreed in writing, ESG and the Relevant Group Company do not warrant that Data Conversion will correct defects, inaccuracies, inconsistencies or omissions in the Customer’s source data. 

14.16 Where Data Conversion is carried out in connection with Software Services, software subscriptions, software licences, support, training, implementation or related services supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 14 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

14.17 Where Data Conversion is carried out in connection with Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 14 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

15. WARRANTY

15.1 Except as expressly set out in these Conditions, the applicable Order Form, Specification, Subscription Contract or written agreement, ESG and the Relevant Group Company give no warranty in relation to the Software, Products or Services. 

15.2 ESG or the Relevant Group Company warrants that Services supplied by it shall be performed with reasonable skill and care. 

15.3 Where bespoke development, configuration, integration, website development or other bespoke services are supplied by ESG or the Relevant Group Company, ESG or the Relevant Group Company shall use reasonable endeavours to correct any material defect notified by the Customer in writing within 30 days following delivery, installation, go-live, acceptance or deemed acceptance of the relevant bespoke work. 

15.4 The warranty in Clause 15.3 shall apply only where the relevant defect is caused by ESG’s or the Relevant Group Company’s failure to exercise reasonable skill and care and shall not apply to defects, errors or issues caused by: 

15.4.1 incorrect use, misuse, negligence or operator error by the Customer or any third party acting on behalf of the Customer; 

15.4.2 modifications, configurations, integrations, repairs, workarounds or changes made by any person other than ESG, the Relevant Group Company or their authorised contractors; 

15.4.3 failure by the Customer to comply with instructions, documentation, technical requirements or minimum specifications notified by ESG or the Relevant Group Company; 

15.4.4 failure by the Customer to install, apply or implement any update, patch, fix, release or instruction provided or recommended by ESG or the Relevant Group Company; 

15.4.5 the Customer’s equipment, hardware, software, network, internet connectivity, hosting environment, third-party systems, APIs, integrations, data, operating environment or other external cause; 

15.4.6 third-party software, third-party services, hosting providers, domain registrars, payment providers, API providers, platforms, plug-ins or integrations outside ESG’s or the Relevant Group Company’s reasonable control; 

15.4.7 inaccurate, incomplete, corrupt, duplicated, unsuitable or defective data supplied by or on behalf of the Customer; 

15.4.8 use of the Software, Products or Services outside the permitted scope of use or in breach of these Conditions; or 

15.4.9 events outside ESG’s or the Relevant Group Company’s reasonable control.

15.5 ESG and the Relevant Group Company do not warrant that the Software, Products or Services will be uninterrupted, error-free, bug-free, virus-free, secure from all unauthorised access, compatible with all systems or third-party services, or capable of meeting any particular business outcome or requirement unless expressly agreed in writing. 

15.6 ESG and the Relevant Group Company do not warrant that any Software, Products or Services will operate with the Customer’s existing or future hardware, software, systems, networks, websites, APIs, integrations, data, third-party services or operating environment unless expressly stated in the applicable Specification. 

15.7 Any third-party software, third-party products, third-party services, hosting platforms, APIs, plug-ins, integrations, domain services or other third-party materials are supplied subject to the applicable third-party terms. ESG and the Relevant Group Company give no warranty in respect of third-party products or services except to the extent expressly stated in writing. 

15.8 Subject to Clause 15.2, all Software, Products and Services not expressly designated as warranted are supplied “as is” and “as available” to the fullest extent permitted by law. 

15.9 Except as expressly provided in these Conditions, all warranties, conditions, representations and terms, whether express or implied by statute, common law, custom, trade usage or otherwise, including any implied warranties or conditions of satisfactory quality, fitness for purpose, correspondence with description, compatibility and non-infringement, are excluded to the fullest extent permitted by law. 

15.10 The Customer acknowledges that it is responsible for determining whether the Software, Products and Services are suitable for the Customer’s requirements, business processes, technical environment and intended use. 15.11 No warranty claim shall be accepted unless the Customer notifies ESG or the Relevant Group Company in writing within the applicable warranty period, provides reasonable details of the alleged defect, and gives ESG or the Relevant Group Company a reasonable opportunity to investigate and remedy the issue. 

15.12 Where ESG or the Relevant Group Company accepts a valid warranty claim, the Customer’s exclusive remedy shall be, at ESG’s or the Relevant Group Company’s option, the correction, repair, replacement, re-performance or reconfiguration of the affected Software, Product or Service, or the provision of a reasonable workaround. 

15.13 ESG and the Relevant Group Company shall not be liable under any warranty where the Customer fails to provide reasonable access, information, cooperation, data, technical assistance, remote access or other support reasonably required to investigate or remedy the issue. 

15.14 Any warranty given under these Conditions is conditional upon the Customer having paid all sums due, maintaining any required Direct Debit mandate, and complying with these Conditions. 

15.15 Where Software Services, software subscriptions, software licences, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 15 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

15.16 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 15 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

16. INDEMNITY AND LIMITATION OF LIABILITY 

16.1 Nothing in these Conditions shall limit or exclude liability for: 

16.1.1 death or personal injury caused by negligence; 

16.1.2 fraud or fraudulent misrepresentation; or 

16.1.3 any other liability which cannot lawfully be limited or excluded. 

16.2 Subject to Clause 16.1, ESG or the Relevant Group Company shall indemnify the Customer for liability proven to arise from death or personal injury caused by defects in Products supplied by ESG or the Relevant Group Company or by the negligence of ESG’s or the Relevant Group Company’s employees in connection with the performance of their duties under this Agreement. 

16.3 Subject to Clause 16.1, ESG or the Relevant Group Company shall indemnify the Customer for direct physical damage to tangible property caused by defects in Products supplied by ESG or the Relevant Group Company or by the negligence of ESG’s or the Relevant Group Company’s employees in connection with the performance of their duties under this Agreement. 

16.4 Subject to Clause 16.1, the total aggregate liability of ESG, the Relevant Group Company, all Group Companies, and their respective employees, agents, contractors, subcontractors and suppliers arising out of or in connection with this Agreement, whether in contract, tort including negligence, breach of statutory duty, misrepresentation, restitution or otherwise, shall be limited to £250,000 for any one event or series of connected events. 

16.5 Subject to Clauses 16.1 and 16.4, the total aggregate liability of ESG, the Relevant Group Company, all Group Companies, and their respective employees, agents, contractors, subcontractors and suppliers to the Customer for any claim arising out of or in connection with any Product, Service, Software, Subscription Contract, Hosting Service, Website Service, API Service, Support Service or other matter shall be limited to the amount paid by the Customer for the relevant Product or, where the claim relates to a recurring Service or Subscription Contract, the annual charges paid or payable by the Customer for the Service which is the subject of the claim. 

16.6 Subject to Clause 16.1, ESG, the Relevant Group Company, all Group Companies, and their respective employees, agents, contractors, subcontractors and suppliers shall not be liable for:

16.6.1 loss of profits; 

16.6.2 loss of sales or business; 

16.6.3 loss of agreements or contracts; 

16.6.4 loss of anticipated savings; 

16.6.5 loss of or damage to goodwill or reputation; 

16.6.6 loss, corruption, degradation or inaccuracy of data; 

16.6.7 loss arising from business interruption; 

16.6.8 loss arising from third-party software, third-party services, hosting providers, domain registrars, API providers, platforms, integrations, networks, internet service providers or other third-party suppliers; 

16.6.9 wasted management or staff time; or 

16.6.10 any indirect, special, incidental or consequential loss or damage.

16.7 ESG and the Relevant Group Company shall not be liable for any failure, delay, interruption, suspension, loss, damage or liability arising from: 

16.7.1 any act, omission, delay or default of the Customer; 

16.7.2 the Customer’s failure to provide accurate information, data, access, cooperation, approvals, instructions or materials; 

16.7.3 Customer equipment, hardware, software, systems, network, internet connectivity, hosting environment, third-party services, integrations, APIs, data or operating environment; 

16.7.4 use of the Software, Products or Services other than in accordance with these Conditions, the applicable documentation or ESG’s or the Relevant Group Company’s instructions; 

16.7.5 unauthorised access resulting from the Customer’s failure to keep usernames, passwords, API keys, access credentials or systems secure; 

16.7.6 modifications, configurations, integrations, repairs or workarounds carried out by any person other than ESG, the Relevant Group Company or their authorised contractors; or 

16.7.7 any event outside ESG’s or the Relevant Group Company’s reasonable control. 

16.8 ESG and the Relevant Group Company shall not be responsible for delay or failure to deliver, supply, support, host, maintain or perform any Product or Service due to causes beyond their reasonable control, including but not limited to fire, flood, Act of God, industrial dispute, war, terrorism, pandemic, epidemic, civil disturbance, interruption of power or telecommunications, failure of internet services, cyberattack, malicious code, denial-of-service attack, failure of third-party suppliers, insolvency of subcontractors or suppliers, or inability to obtain products, licences, hosting, infrastructure, software, data, services or materials from third-party suppliers. 

16.9 Neither party shall be liable for any delay in performing, or failure to perform, its obligations under this Agreement, other than a payment obligation, where such delay or failure is due to any cause outside its reasonable control. Such delay or failure shall not constitute a breach of these Conditions and the time for performance of the affected obligation shall be extended by such period as is reasonable in the circumstances. 

16.10 The limitations and exclusions in this Clause 16 shall apply regardless of the form of action, whether under statute, contract, tort including negligence, breach of statutory duty, misrepresentation, restitution or otherwise. 

16.11 For the purposes of this Clause 16, references to ESG shall include the Relevant Group Company, all Group Companies, and their respective employees, agents, contractors, subcontractors and suppliers, and the liability cap in this Clause 16 shall apply in aggregate across all such persons and entities. 

16.12 The Customer acknowledges that the charges have been calculated on the basis that the limitations and exclusions in this Clause 16 shall apply and that ESG and the Relevant Group Company would not have entered into the Agreement without those limitations and exclusions. 

17. SUSPENSION OF SERVICE

17.1 ESG or the Relevant Group Company may suspend, restrict, disable or withdraw access to any Products, Services, Software, licences, Subscriptions, Hosting Services, Website Services, API Services, Support Services, accounts, portals, integrations, domain-related services or other services provided to the Customer if: 

17.1.1 the Customer fails to make any payment due to ESG, the Relevant Group Company or any assignee of the relevant debt by the due date for payment; 

17.1.2 the Customer fails to complete, maintain or keep in force any required Direct Debit mandate in accordance with Clause 6; 

17.1.3 any Direct Debit payment fails, is cancelled, recalled, rejected, reversed or otherwise not received when due; 

17.1.4 a new monthly invoice, Billing Period or Subscription charge falls due while any undisputed invoice, charge or Subscription payment relating to a previous Billing Period remains unpaid, or where any disputed amount has not been disputed in accordance with Clause 6.17; 

17.1.5 the Customer exceeds any agreed credit limit or payment arrangement without the prior written approval of ESG or the Relevant Group Company; 

17.1.6 the Customer is otherwise in breach of these Conditions, any Order Form, Subscription Contract, Acceptable Usage Policy or other applicable terms; 

17.1.7 the Customer uses, or permits the use of, the Products or Services in a manner which is unlawful, harmful, abusive, excessive, insecure or contrary to any Acceptable Usage Policy; 

17.1.8 the Customer does or permits anything to be done which, in the reasonable opinion of ESG or the Relevant Group Company, jeopardises or may jeopardise the security, integrity, availability, performance or operation of any Software, Product, Service, network, system, website, API, hosting environment, data, infrastructure or third-party service; 

17.1.9 ESG or the Relevant Group Company reasonably considers suspension necessary to protect the interests, systems, data, customers, suppliers, infrastructure or reputation of ESG, the Relevant Group Company, any Group Company or any third-party provider; 

17.1.10 ESG or the Relevant Group Company is required to suspend the Products or Services by law, regulation, court order, regulator, law enforcement authority, third-party supplier or hosting provider; or 

17.1.11 continued provision of the Products or Services may expose ESG, the Relevant Group Company or any Group Company to liability, legal risk, security risk, regulatory risk or breach of third-party terms.

17.2 ESG or the Relevant Group Company shall use reasonable endeavours to notify the Customer before suspending any Product or Service under this Clause 17 where it is lawful and reasonably practicable to do so. 

17.3 ESG or the Relevant Group Company may suspend any Product or Service immediately and without prior notice where immediate suspension is reasonably necessary for security, technical, operational, legal, regulatory, payment, third-party provider or service continuity reasons. 

17.4 Where any undisputed invoice, charge or Subscription payment relating to a previous Billing Period remains unpaid at the time a further monthly invoice, Billing Period or Subscription charge is issued or falls due, ESG or the Relevant Group Company may suspend the relevant Products or Services immediately without further notice. 

17.5 The issue of any subsequent invoice, statement, payment reminder or renewal notice during any period of non-payment, default or suspension shall not constitute a waiver of ESG’s or the Relevant Group Company’s right to suspend, terminate, recover arrears, charge interest, withdraw discounts or enforce any other right or remedy available under these Conditions. 

17.6 Suspension under this Clause 17 may apply to all Products and Services supplied to the Customer or only to the affected Product, Service, account, licence, Subscription, hosting environment, website, API, integration or support service, at ESG’s or the Relevant Group Company’s discretion. 

17.7 Suspension shall not affect the Customer’s obligation to pay any charges, fees, subscriptions, expenses or other sums due under this Agreement. 

17.8 During any period of suspension, ESG or the Relevant Group Company may continue to charge the Customer for the suspended Products or Services for the remainder of the applicable Subscription Contract term, renewal period, Billing Period or committed contract term. 

17.9 ESG or the Relevant Group Company may refuse to release, transfer, export, unlock, reactivate or provide access to any data, username, domain name, licence key, activation key, Internet Protocol Address, API key, access credential, hosting environment, website, account or other technical resource until: 

17.9.1 the Agreement has been lawfully brought to an end; 

17.9.2 all sums due from the Customer have been paid in full; 

17.9.3 the Customer has complied with its obligations under these Conditions; and 

17.9.4 ESG or the Relevant Group Company is satisfied that release or transfer would not breach any law, third-party term, security requirement or regulatory obligation. 

17.10 Where suspension arises from non-payment, failure to maintain a Direct Debit mandate, payment default or breach of these Conditions, ESG or the Relevant Group Company may require the Customer to pay all outstanding sums, reactivation charges, administrative charges, reconnection charges, support charges and any other reasonable costs incurred before reinstating the relevant Products or Services. 

17.11 ESG or the Relevant Group Company shall not be liable to the Customer for any loss, damage, cost, claim, business interruption or other liability arising from suspension, restriction, disabling or withdrawal of Products or Services in accordance with this Clause 17. 

17.12 Any suspension under this Clause 17 shall be without prejudice to any other rights or remedies available to ESG, the Relevant Group Company or any assignee of the relevant debt, including the right to charge interest, recover costs, terminate the Agreement, claim damages or recover all sums due. 

17.13 Where Software Services, software subscriptions, software licences, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 17 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

17.14 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 17 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company.

18. TERM & TERMINATION

18.1 Hosting, Rental, Support, Licence, Software Services, Website Services, API Services and other Subscription Contracts shall remain in force for the contract term specified in the applicable Order Form, Subscription Contract, renewal notice, invoice, subscription confirmation or other written agreement. 

18.2 The contract term shall commence on the later of:

18.2.1 the date on which the applicable Order Form or Subscription Contract is signed or accepted by the Customer; 

18.2.2 the date on which the relevant Products or Services commence, are activated, are made available, or go live; 

18.2.3 the date specified in the applicable Order Form, Subscription Contract, renewal notice, invoice, subscription confirmation or other written agreement; or 

18.2.4 the date of the most recent auto-renewal. 

18.3 Unless terminated by the Customer in accordance with Clause 18.5, or unless a replacement order or Subscription Contract is agreed in writing, each Subscription Contract shall automatically renew for the same duration as the original term on the relevant renewal date. 

18.4 Where no contract term is specified in the applicable Order Form, Subscription Contract, renewal notice, invoice, subscription confirmation or other written agreement, the minimum contract term shall be 12 months. 

18.5 The Customer may prevent the automatic renewal of a Subscription Contract by serving a Valid Non-Renewal Notice. 

18.6 Any notice given under Clause 18.5 shall take effect only at the end of the then-current contract term. The Subscription Contract shall continue in force until the expiry of the then-current contract term and the Customer shall remain liable for all charges, fees, subscriptions, expenses and other sums due for that term. 

18.7 Email notification shall not be accepted as notice of termination unless expressly agreed in writing by ESG or the Relevant Group Company. 

18.8 Payment for Products or Services made annually and in advance shall not be refunded in the event of termination or non-renewal by the Customer. 

18.9 Where the Customer serves a Valid Non-Renewal Notice, the relevant Subscription Contract shall continue until the end of the then-current contract term and all charges shall remain payable in accordance with the agreed payment schedule. 

18.10 Where the Customer attempts to cancel, terminate, downgrade, reduce or otherwise vary a Subscription Contract before the end of the then-current contract term, or where the Agreement is terminated by ESG or the Relevant Group Company as a result of the Customer’s breach, all remaining unbilled Billing Periods, committed subscription charges, support charges, hosting charges, licence charges and other sums associated with the then-current contract term shall become immediately payable. 

18.11 The Customer shall not be entitled to terminate, cancel, downgrade, reduce or otherwise vary a Subscription Contract during the then-current contract term except as expressly permitted by these Conditions or as otherwise agreed in writing by ESG or the Relevant Group Company. 

18.12 ESG or the Relevant Group Company may terminate the Agreement, any Subscription Contract, licence, Product or Service immediately by written notice if: 

18.12.1 the Customer fails to pay any sum due to ESG, the Relevant Group Company or any assignee of the relevant debt by the due date for payment; 

18.12.2 the Customer fails to complete, maintain or keep in force any required Direct Debit mandate; 

18.12.3 any Direct Debit payment fails, is cancelled, recalled, rejected, reversed or otherwise not received when due; 

18.12.4 the Customer breaches these Conditions, any Order Form, Subscription Contract, Acceptable Usage Policy or other applicable terms; 

18.12.5 the Customer exceeds the permitted scope of use of any Software, Product, Service, licence, Subscription, website, API, hosting environment or support service; 

18.12.6 the Customer does or permits anything which jeopardises, or may jeopardise, the security, integrity, availability, performance, operation or reputation of ESG, the Relevant Group Company, any Group Company, any Product or Service, or any third-party system, network, platform or supplier; 

18.12.7 the Customer suspends, or threatens to suspend, payment of its debts or is unable, or is deemed unable, to pay its debts as they fall due; 

18.12.8 the Customer makes or proposes any arrangement or composition with its creditors; 

18.12.9 the Customer becomes subject to any bankruptcy, insolvency, administration, receivership, liquidation, winding-up or similar process; 

18.12.10 any distress, execution, attachment or other legal process is levied against the Customer’s assets; 

18.12.11 the Customer ceases or threatens to cease to carry on business; 

18.12.12 ESG or the Relevant Group Company reasonably believes that the Customer is, or is likely to become, unable to meet its obligations in full as they fall due; or 

18.12.13 continued provision of the Products or Services may expose ESG, the Relevant Group Company or any Group Company to legal, regulatory, security, sanctions, export control, financial or reputational risk. 

18.13 Upon termination by ESG or the Relevant Group Company under Clause 18.12, the Agreement, Subscription Contract, licence, Product or Service shall be deemed terminated as a result of the Customer’s breach, without prejudice to any claim, right or remedy available to ESG, the Relevant Group Company or any assignee of the relevant debt. 

18.14 ESG or the Relevant Group Company may invalidate, disable, suspend, withdraw or reallocate any licence key, activation key, username, password, API key, access credential, account, domain-related service, Internet Protocol Address, hosting environment, website, software access, integration or other technical resource issued or made available to the Customer following suspension, expiry or termination of the Agreement or relevant Service. 

18.15 Domain name hosting, domain transfer requests, DNS changes, domain name server record changes and related domain administration requests must be made in writing and signed or authorised by the domain name owner or other authorised representative acceptable to ESG or the Relevant Group Company. 

18.16 ESG or the Relevant Group Company may make a reasonable administration charge for domain name transfers, DNS changes, domain administration, data exports, account reactivation, reconnection or other termination-related administration. 

18.17 Domain name transfers, DNS changes, hosting transfers, data exports, licence releases, access releases, account releases or other technical transfers shall not be made until: 

18.17.1 all outstanding amounts have been paid by the Customer in full; 

18.17.2 the Agreement or relevant Service has been lawfully brought to an end; 

18.17.3 the Customer has complied with all obligations under these Conditions; 

18.17.4 ESG or the Relevant Group Company is satisfied that the request has been properly authorised; and 

18.17.5 the transfer or release would not breach any law, regulation, third-party term, security requirement or contractual obligation.

18.18 Domain names, access credentials, hosting environments, licence keys, activation keys, Internet Protocol Addresses, accounts and other technical resources administered, controlled, allocated or provided by ESG or the Relevant Group Company shall remain under the control of ESG or the Relevant Group Company until all sums due have been received in cleared funds and the Customer has complied with these Conditions. 

18.19 Termination or expiry of the Agreement, Subscription Contract, licence, Product or Service shall not affect any accrued rights, remedies, obligations or liabilities of ESG, the Relevant Group Company, any Group Company, the Customer or any assignee of the relevant debt existing at the date of termination or expiry. 

18.20 Termination or expiry shall not affect any right of ESG, the Relevant Group Company or any assignee of the relevant debt to recover payment, damages, interest, costs or any other remedy in respect of any breach of the Agreement by the Customer. 

18.21 On termination or expiry of the Agreement or relevant Service, the Customer’s right to use any Internet Protocol Address, hosting environment, API endpoint, access credential, account, licence key, activation key or other technical resource allocated or made available by ESG or the Relevant Group Company shall cease immediately unless otherwise agreed in writing. 

18.22 In the event of termination by ESG or the Relevant Group Company due to breach of these Conditions by the Customer, ESG or the Relevant Group Company shall be entitled to recover the balance of all payments which would, but for such termination, have accrued up to the earliest date on which the Agreement or relevant Subscription Contract could have been terminated by the Customer in accordance with these Conditions. 

18.23 Any provisions of these Conditions which expressly or by implication are intended to survive termination or expiry shall continue in full force and effect, including provisions relating to payment, debt recovery, intellectual property, confidentiality, data protection, limitation of liability, indemnities, restrictions on use, export controls, non-solicitation, governing law and jurisdiction. 

18.24 Where Software Services, software subscriptions, software licences, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 18 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

18.25 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 18 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

19. RELEASE OF INFORMATION

19.1 For the purposes of this Clause 19, references to data shall include all hosted customer data files, databases, records, documents, attachments, uploaded files, candidate records, client records, contact records, website content, media files, configuration data, integration data, account data and other data or files uploaded to, stored within, processed through or hosted on the Software, Products or Services by or on behalf of the Customer, subject always to applicable law, data protection legislation, the Data Processing Agreement and any rights of data subjects. 

19.2 The Customer shall remain responsible for the content, accuracy, legality, integrity, backup, retention and use of all Customer Data. Except as expressly stated in these Conditions, ownership of Customer Data shall remain with the Customer or the relevant third-party owner, and nothing in these Conditions shall transfer ownership of Customer Data to ESG or the Relevant Group Company. 

19.3 ESG or the Relevant Group Company shall not be required to release, transfer, export, unlock, disclose, reactivate, provide access to, or otherwise make available any Customer Data, hosted customer data files, username, password, account, domain name, DNS record, Internet Protocol Address, licence key, activation key, API key, access credential, hosting environment, website, integration, technical resource or other information until: 

19.3.1 the Agreement or relevant Service has been lawfully brought to an end; 

19.3.2 all sums properly due from the Customer to ESG, the Relevant Group Company or any assignee of the relevant debt have been received in cleared funds; 

19.3.3 the Customer has complied with all of its obligations under these Conditions; 

19.3.4 the Customer has provided all information, authority, verification and cooperation reasonably required by ESG or the Relevant Group Company; and 

19.3.5 ESG or the Relevant Group Company is satisfied that the release, transfer, export, disclosure or provision of access would not breach any law, regulation, third-party term, security requirement, data protection obligation, intellectual property right, confidentiality obligation or contractual obligation. 

19.4 Domain names, DNS records, hosting environments, websites, accounts, licence keys, activation keys, API keys, access credentials, Internet Protocol Addresses, Customer Data, hosted customer data files and other technical resources administered, controlled, allocated, stored, processed or provided by ESG or the Relevant Group Company may remain under the control of ESG or the Relevant Group Company until all sums properly due have been paid in full and the Customer has complied with these Conditions. 

19.5 ESG or the Relevant Group Company may retain, suspend access to, and withhold release, export, migration, transfer or delivery of Customer Data and hosted customer data files until all sums properly due from the Customer to ESG, the Relevant Group Company or any assignee of the relevant debt have been paid in full and the Customer has complied with these Conditions. 

19.6 The Customer acknowledges that ESG or the Relevant Group Company may refuse or delay the release, transfer, export or provision of access to any Customer Data, hosted customer data files, domain name, DNS record, hosting environment, website, account, licence key, activation key, API key, access credential, Internet Protocol Address or other technical resource where: 

19.6.1 any invoice, charge, Subscription payment or other sum remains unpaid; 

19.6.2 the Customer has failed to maintain any required Direct Debit mandate; 

19.6.3 the Customer is in breach of these Conditions; 

19.6.4 the Agreement or relevant Service has not been validly terminated or has not expired; 

19.6.5 ESG or the Relevant Group Company reasonably requires additional identity, ownership, authority, insolvency, security or data protection verification; 

19.6.6 release or transfer may compromise the security, integrity or operation of any system, service, website, domain, API, data, account or third-party platform; 

19.6.7 release or transfer may expose ESG, the Relevant Group Company or any Group Company to legal, regulatory, contractual, data protection, confidentiality, security or financial risk; or 

19.6.8 ESG or the Relevant Group Company has not received reasonable evidence that the person requesting release, transfer, export or access is authorised to act on behalf of the Customer or any insolvency officeholder.

19.7 Where the Customer becomes subject to any insolvency, administration, liquidation, receivership, winding-up, restructuring, dissolution, voluntary arrangement, scheme of arrangement or similar process, ESG or the Relevant Group Company may require any administrator, liquidator, receiver, insolvency practitioner, purchaser, proposed purchaser or other authorised person seeking access to, release of, export of, migration of or transfer of Customer Data, hosted customer data files or technical resources to provide evidence of authority, identity, lawful basis, data protection compliance, confidentiality compliance and payment of all sums properly due before any such access, release, export, migration or transfer is carried out. 

19.8 ESG or the Relevant Group Company shall not be required to provide access to, release, transfer, export or migrate Customer Data, hosted customer data files or technical resources to any administrator, liquidator, receiver, insolvency practitioner, purchaser, proposed purchaser or other third party unless ESG or the Relevant Group Company is satisfied, acting reasonably, that such access, release, transfer, export or migration is lawful, properly authorised and compliant with applicable data protection legislation, confidentiality obligations, third-party rights and these Conditions. 

19.9 Any release, transfer, export or provision of Customer Data, hosted customer data files, information, domains, DNS records, websites, hosting environments, access credentials or technical resources shall be provided in such format, manner and timescale as ESG or the Relevant Group Company may reasonably determine. 

19.10 ESG or the Relevant Group Company may charge the Customer, administrator, liquidator, receiver, insolvency practitioner, purchaser or other authorised person for any continued hosting, storage, preservation, extraction, export, migration, transfer, technical assistance, administration, professional costs, domain transfer, DNS change, account transfer, website transfer, hosting migration, licence release, access release or other work required in connection with Customer Data, hosted customer data files or technical resources following suspension, termination, expiry, non-payment or insolvency of the Customer. 

19.11 Unless expressly agreed in writing, ESG and the Relevant Group Company shall not be responsible for providing Customer Data, hosted customer data files, files, materials, systems, configurations, source code, object code, databases, database structures, templates, designs, documentation, credentials, third-party access, domain records or other resources in any format other than the format in which they are ordinarily held or reasonably made available. 

19.12 ESG and the Relevant Group Company shall not be required to release or transfer any material, software, code, configuration, template, design, process, documentation, tool, system, database structure, integration, API, know-how or other intellectual property belonging to ESG, the Relevant Group Company, any Group Company or any third-party supplier. 

19.13 The Customer shall remain responsible for maintaining its own backups, records, copies, exports and business continuity arrangements. ESG and the Relevant Group Company shall not be liable for any loss arising from the Customer’s failure to maintain backups, copies, exports or records. 

19.14 Nothing in this Clause 19 shall prevent ESG or the Relevant Group Company from assigning, selling or otherwise dealing with any debt, invoice, right to payment, contractual right, claim or cause of action relating to the Customer. Any transfer, disclosure, release or provision of access to Customer Data or hosted customer data files shall only be made where ESG or the Relevant Group Company is satisfied that it is lawful, authorised and compliant with applicable data protection legislation, confidentiality obligations, third-party rights and these Conditions. 

19.15 Release, transfer, export or provision of any Customer Data, hosted customer data files, information or technical resource shall not affect the Customer’s obligation to pay all sums properly due under the Agreement and shall not operate as a waiver of any rights or remedies of ESG, the Relevant Group Company or any assignee of the relevant debt. 

19.16 ESG or the Relevant Group Company may retain copies of Customer Data, hosted customer data files, account records, system logs, billing records, support records and other information to the extent reasonably required for legal, regulatory, accounting, audit, security, dispute resolution, debt recovery, backup, compliance or legitimate business purposes, subject always to applicable data protection legislation. 

19.17 Where ESG or the Relevant Group Company is required by law, regulation, court order, regulator, law enforcement authority, insolvency officeholder or other competent authority to disclose or preserve Customer Data, hosted customer data files or related information, ESG or the Relevant Group Company may do so without liability to the Customer, provided that any such disclosure or preservation is carried out in accordance with applicable law. 

19.18 Where Software Services, software subscriptions, software licences, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 19 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

19.19 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 19 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

20. NON-SOLICITATION

20.1 During the term of the Agreement and for a period of 12 months following its termination or expiry, the Customer shall not, without the prior written consent of ESG or the Relevant Group Company, directly or indirectly solicit, employ, engage, retain, contract with, or otherwise make use of the services of any employee, officer, contractor, consultant, subcontractor, agent or representative of ESG, the Relevant Group Company or any Group Company who has been involved in the provision, management, sale, support, implementation, administration or delivery of any Products or Services to the Customer. 

20.2 The restriction in Clause 20.1 shall apply whether the relevant person is approached directly by the Customer or indirectly through any subsidiary, associated company, group company, recruitment agency, intermediary, consultant, contractor or other third party acting for or on behalf of the Customer. 

20.3 If the Customer breaches Clause 20.1, the Customer shall pay to ESG or the Relevant Group Company, as liquidated damages, a sum equal to the greater of: 

20.3.1 the initial gross annual salary or annualised fees payable to the relevant person by the Customer or any person engaging them; or 

20.3.2 the gross annual salary, annualised fees or total annual cost to ESG, the Relevant Group Company or the relevant Group Company of the relevant person immediately prior to the breach.

20.4 The parties agree that the sum payable under Clause 20.3 represents a genuine pre-estimate of the loss likely to be suffered by ESG, the Relevant Group Company or the relevant Group Company as a result of the breach, including recruitment costs, replacement costs, management time, disruption, loss of knowledge, loss of continuity and loss of business opportunity.  The parties agree that the restrictions in this Clause 20 are reasonable and necessary to protect ESG’s and the Relevant Group Company’s legitimate business interests, including workforce stability, customer knowledge, technical know-how and continuity of service. 

20.5 Payment under Clause 20.3 shall be without prejudice to any other rights or remedies available to ESG, the Relevant Group Company or any Group Company, including the right to seek injunctive relief. 

20.6 Nothing in this Clause 20 shall prevent the Customer from employing or engaging a person who responds to a general recruitment advertisement not specifically targeted at employees, contractors, consultants, subcontractors, agents or representatives of ESG, the Relevant Group Company or any Group Company.

21. CONFIDENTIALITY 

21.1 Each party acknowledges that it may receive or have access to confidential information belonging to the other party in connection with the Agreement. 

21.2 For the purposes of this Clause 21, “Confidential Information” means all information of a confidential, proprietary, commercial, technical, operational or business nature, whether disclosed orally, visually, electronically, in writing or by any other means, including: 

21.2.1 information relating to the Software, Products, Services, Licensed Materials, documentation, databases, systems, APIs, integrations, hosting environments, source code, object code, designs, templates, processes, methods, know-how, specifications, configurations, pricing, security arrangements, business plans, customers, suppliers and trade secrets; 

21.2.2 information relating to ESG, the Relevant Group Company, any Group Company, the Customer, their respective businesses, finances, operations, products, services, employees, contractors, customers, candidates, clients, contacts, users, suppliers or affairs; 

21.2.3 any information which is marked or described as confidential, or which should reasonably be understood to be confidential given the nature of the information or the circumstances of disclosure; and 

21.2.4 any ideas, principles, methods, observations, findings or information derived from observing, studying, testing, accessing or using the Software, Products, Services or Licensed Materials. 

21.3 The Customer acknowledges that the Software, Products, Services, Licensed Materials and related documentation contain Confidential Information belonging to ESG, the Relevant Group Company, Group Companies and/or third-party owners or licensors. 

21.4 Each party undertakes to treat the other party’s Confidential Information as confidential and to keep it secure. 

21.5 The receiving party shall not use the disclosing party’s Confidential Information for any purpose other than performing, receiving, using, administering or enforcing the Agreement. 

21.6 The receiving party shall not disclose the disclosing party’s Confidential Information to any person except as permitted by this Clause 21. 

21.7 The Customer shall not, without ESG’s or the Relevant Group Company’s prior written consent, communicate, disclose, copy, publish, reproduce, transmit, make available or otherwise use any part of the Confidential Information relating to ESG, the Relevant Group Company, any Group Company, the Software, Products, Services or Licensed Materials except as expressly permitted by these Conditions. 

21.8 The receiving party may disclose Confidential Information: 

21.8.1 to its employees, officers, agents, contractors, subcontractors, professional advisers, auditors, insurers, funders and representatives who need to know the information for the purposes of the Agreement, provided that they are subject to obligations of confidentiality no less restrictive than those set out in this Clause 21; 

21.8.2 where required by law, regulation, court order, regulator, law enforcement authority, insolvency officeholder, tax authority or other competent authority; 

21.8.3 to the extent required to exercise or enforce its rights under the Agreement; and

21.8.4 in the case of ESG or the Relevant Group Company, to any Group Company, assignee of a debt, subcontractor, supplier, hosting provider, software provider, payment provider, professional adviser or other third party where reasonably required for service delivery, account administration, billing, payment collection, support, compliance, security, legal proceedings, business administration or enforcement of these Conditions. 

21.9 Where disclosure is made under Clause 21.8.2, the receiving party shall, where legally permitted and reasonably practicable, notify the disclosing party before making the disclosure. 

21.10 The receiving party shall ensure that any person to whom Confidential Information is disclosed under Clause 21.8 is made aware of its confidential nature and complies with confidentiality obligations equivalent to those set out in this Clause 21. 

21.11 The Customer shall indemnify ESG, the Relevant Group Company and any Group Company against all losses, liabilities, damages, costs, claims and expenses arising from any unauthorised disclosure, misuse or breach of confidentiality by the Customer or any person to whom the Customer discloses Confidential Information. 

21.12 The obligations in this Clause 21 shall not apply to Confidential Information which the receiving party can demonstrate: 

21.12.1 is or becomes publicly available other than as a result of a breach of the Agreement; 

21.12.2 was lawfully known to the receiving party before disclosure by the disclosing party; 

21.12.3 is lawfully received from a third party without restriction on disclosure; 

21.12.4 is independently developed by the receiving party without use of, reliance on or access to the disclosing party’s Confidential Information; or 

21.12.5 is required to be disclosed by law, regulation, court order, regulator, law enforcement authority or other competent authority. 

21.13 The Customer shall not use ESG’s, the Relevant Group Company’s or any Group Company’s Confidential Information to develop, procure, commission, assist, support or improve any competing product, software, service, website, API, integration, system or platform. 

21.14 The Customer shall not disclose to any competitor of ESG, the Relevant Group Company or any Group Company any Confidential Information relating to the Software, Products, Services, pricing, technical information, documentation, designs, systems, APIs, integrations, business methods or commercial arrangements. 

21.15 Upon termination or expiry of the Agreement, or upon request by the disclosing party, the receiving party shall return, delete or destroy the disclosing party’s Confidential Information in its possession or control, except to the extent that retention is required by law, regulation, audit, insurance, accounting, dispute resolution, backup, compliance or legitimate business purposes. 

21.16 ESG and the Relevant Group Company may retain copies of Confidential Information to the extent reasonably required for legal, regulatory, accounting, audit, security, backup, dispute resolution, debt recovery, compliance or legitimate business purposes. 

21.17 Nothing in this Clause 21 shall require ESG or the Relevant Group Company to return, delete, destroy or disclose materials, records, logs, backups, system information, metadata, technical data or other information which ESG or the Relevant Group Company is entitled or required to retain under these Conditions or applicable law. 

21.18 The confidentiality obligations in this Clause 21 shall continue for a period of 5 years after termination or expiry of the Agreement, except in relation to trade secrets, source code, security information, technical information, proprietary software information and intellectual property-related Confidential Information, which shall remain confidential for so long as such information remains confidential in nature. 

21.19 Where Software Services, software subscriptions, software licences, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 21 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

21.20 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 21 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company. 

22. DATA PROTECTION

22.1 The parties shall comply with all applicable data protection and privacy legislation in force from time to time in the United Kingdom, including the UK GDPR, the Data Protection Act 2018 and the Privacy and Electronic Communications Regulations 2003. 

22.2 Where ESG or the Relevant Group Company processes personal data on behalf of the Customer in connection with the Products or Services, such processing shall be governed by the Eclipse Software Data Processing Agreement, as updated from time to time and made available on the Eclipse Software website. 

22.3 The Customer acknowledges that, for the purposes of the Data Processing Agreement, the Customer shall generally act as Data Controller and ESG or the Relevant Group Company shall generally act as Data Processor in respect of personal data uploaded to, stored within, processed through or hosted on the Software, Products or Services by or on behalf of the Customer. 

22.4 ESG and each Relevant Group Company may process personal data relating to the Customer, its personnel, account contacts, billing contacts, technical contacts and authorised users for the purposes of providing the Products and Services, administering the Customer’s account, issuing invoices, collecting payments, administering Direct Debit mandates, providing support, managing subscriptions, complying with legal obligations, enforcing contractual rights and carrying out legitimate business administration. 

22.5 ESG and each Relevant Group Company may share personal data between Group Companies where reasonably necessary for service delivery, account administration, billing, payment collection, Direct Debit administration, customer support, technical support, product development, compliance, security, reporting, restructuring, assignment, debt recovery or enforcement of these Conditions. 

22.6 The Customer warrants that it has all necessary rights, permissions, notices, consents and lawful bases required to provide personal data to ESG or the Relevant Group Company and to permit ESG or the Relevant Group Company to process such personal data for the purposes of providing the Products and Services and performing the Agreement. 

22.7 Where there is any conflict between this Clause 22 and the Data Processing Agreement in relation to the processing of personal data on behalf of the Customer, the Data Processing Agreement shall prevail.

23. GENERAL

23.1 The Customer shall not assign, transfer, charge, subcontract, novate or otherwise deal with any of its rights or obligations under these Conditions, the Agreement, any Order Form, Subscription Contract, licence, Product or Service without the prior written consent of ESG or the Relevant Group Company. 

23.2 ESG and/or the Relevant Group Company may assign, transfer, charge, subcontract or otherwise deal with any of its rights under these Conditions, the Agreement, any Order Form, Subscription Contract, licence, Product or Service, including the right to receive payment, to any Group Company or third party. 

23.3 ESG and/or the Relevant Group Company may assign, sell, transfer or otherwise deal with any debt, invoice, right to payment, contractual right, claim or cause of action relating to the Customer without the Customer’s consent. 

23.4 ESG and/or the Relevant Group Company may subcontract, delegate or procure the performance of any of its obligations under the Agreement by any Group Company, contractor, subcontractor, supplier, hosting provider, software provider, payment provider or other third-party service provider, provided that ESG or the Relevant Group Company shall remain responsible for the performance of its obligations unless the Agreement is novated. 

23.5 Where required to give effect to a transfer of both rights and obligations under the Agreement, the Customer shall, acting reasonably and without delay, enter into such novation or transfer documentation as ESG or the Relevant Group Company may reasonably require. 

23.6 All notices required to be given under the Agreement shall be in writing and shall be sent to the recipient’s registered office, trading address, principal place of business, or such other address as the recipient may have notified in writing for the purposes of this Clause 23. 

23.7 Notices to ESG or any Relevant Group Company shall be sent to: 

Eclipse Software 

Orega Piccadilly   

3 Piccadilly Place   

Manchester   

M1 3BN 

or such other address as ESG or the Relevant Group Company may notify to the Customer in writing. 

23.8 Any notice may be delivered personally, sent by first class pre-paid post, recorded delivery, special delivery or courier. Unless otherwise expressly agreed in writing, email shall not be valid notice for the purposes of terminating the Agreement or any Subscription Contract. 

23.9 Any notice shall be deemed to have been received:

23.9.1 if delivered by hand, at the time of delivery; 

23.9.2 if sent by first class pre-paid post, 48 hours after posting, excluding weekends and public holidays in England; 

23.9.3 if sent by recorded delivery, special delivery or courier, at the time recorded by the relevant postal or courier service as delivered. 

23.10 If any provision or part-provision of these Conditions or the Agreement is or becomes invalid, unlawful or unenforceable, it shall be deemed severed from the remaining provisions, which shall continue in full force and effect. 

23.11 If any invalid, unlawful or unenforceable provision would be valid, lawful or enforceable if part of it were deleted or modified, the provision shall apply with the minimum deletion or modification necessary to make it valid, lawful and enforceable. 

23.12 No delay or failure by either party to exercise any right, power or remedy under these Conditions or the Agreement shall operate as a waiver of that right, power or remedy. 

23.13 No single or partial exercise of any right, power or remedy shall prevent or restrict any further exercise of that or any other right, power or remedy. 

23.14 Any waiver must be in writing and shall apply only to the circumstances for which it is given. 

23.15 The rights and remedies provided under these Conditions are cumulative and are not exclusive of any rights or remedies provided by law. 

23.16 These Conditions, together with the applicable Order Form, Subscription Contract, Specification, Data Processing Agreement, Acceptable Usage Policy and any other documents expressly incorporated by reference, constitute the entire agreement between the parties relating to the subject matter of the Agreement. 

23.17 In the event of conflict between the documents forming the Agreement, the following order of precedence shall apply: 

(a) any special terms expressly agreed in writing and signed by ESG or the Relevant Group Company;  

(b) the applicable Order Form or Subscription Contract;  

(c) the Data Processing Agreement, in respect of personal data processing only;  

(d) the Acceptable Usage Policy, in respect of acceptable use matters only;  

(e) these Conditions. 

23.18 The Customer acknowledges that it has not relied on any statement, representation, assurance, warranty, promise or understanding other than those expressly set out in these Conditions or the documents referred to in Clause 23.16. 

23.19 Except as expressly permitted by these Conditions, no variation of the Agreement shall be effective unless made in writing and signed by or on behalf of ESG or the Relevant Group Company. 

23.20 ESG or the Relevant Group Company may update these Conditions from time to time. The version of these Conditions in force at the time of any new order, renewal, continued use, Subscription renewal or purchase shall apply to that order, renewal, continued use, Subscription renewal or purchase, unless otherwise agreed in writing. 

23.21 Nothing in these Conditions shall create or be deemed to create any partnership, joint venture, agency, fiduciary relationship or employment relationship between the parties. 

23.22 Except as expressly provided in these Conditions, the Customer shall have no authority to act on behalf of, bind, represent or incur liability for ESG, the Relevant Group Company or any Group Company. 

23.23 Except in respect of any Group Company, Relevant Group Company, assignee of a debt, licensor, subcontractor, supplier, hosting provider, software provider, payment provider or other third-party service provider of ESG or the Relevant Group Company, who may enforce any provision of these Conditions intended to benefit it, a person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the Agreement. 

23.24 The consent of any person who is not a party to the Agreement shall not be required to vary, amend, rescind, terminate, waive or settle any rights under these Conditions or the Agreement. 

23.25 These Conditions and the Agreement, and any dispute or claim arising out of or in connection with them or their subject matter or formation, including non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of England and Wales. 

23.26 Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Conditions, the Agreement or their subject matter or formation, including non-contractual disputes or claims. 

23.27 Any provisions of these Conditions which expressly or by implication are intended to survive termination or expiry of the Agreement shall continue in full force and effect, including provisions relating to payment, debt recovery, Direct Debit obligations, intellectual property, confidentiality, data protection, limitation of liability, indemnities, export controls, restrictions on use, non-solicitation, release of information, governing law and jurisdiction. 

23.28 Where Software Services, software subscriptions, software licences, support, training, implementation or related services are supplied, licensed, administered, invoiced or collected by Eclipse Recruitment Software Ltd, references in this Clause 23 to ESG shall include Eclipse Recruitment Software Ltd as the Relevant Group Company. 

23.29 Where Website Services, Hosting Services, API Services, recruitment websites, integrations, web subscriptions, domain-related services or associated services are supplied, administered, invoiced or collected by Eclipse Recruitment Websites Ltd, references in this Clause 23 to ESG shall include Eclipse Recruitment Websites Ltd as the Relevant Group Company.