1. Definitions
1.1. Terms: For the purposes of this Agreement, the terms: Purchase Order, Party(ies), Service Provider, Service Provider Documentation, Customer(s), will have the meaning defined in General information.
2. Scope
2.1. Purpose: Service Provider offers its customers the Access to Platform i.e. cloud based HR solution. Customer is interested in using Platform for its HR process. The Parties have therefore entered into the MSA to regulate their rights and duties in relation to the Access to Platform.
2.2. Subscription Plan: This Agreement will apply to any Purchase Order executed between the Parties. The Subscription is agreed upon by executing the Purchase Order. In case of any differences between the Purchase Order and this Agreement, the priority will be the Purchase Order.
2.3. Subscription: Subject to the terms of this Agreement and during the Subscription Period, Service Provider shall provide Customer with Access to the Platform while Customer accepts to pay the Fee to Service Provider for receiving the Access to the Platform. The Access is in more detail explained in the Service Level Agreement (SLA).
2.4. Platform: The Platform is accessible via the Website or in other appropriate means Service Provider informs Customer. Details and main functionalities of the Platform at this date are described in the Terms and Conditions. Note that Service Provider is always looking for possibilities for upgrading the Platform (for example by adding new functionalities to the Platform) and therefore the Platform may change from time to time.
2.5. Subscription Period: The first Subscription Period starts on the Start Date and ends after the period stated in the Purchase Order. Any future Subscription Period follows the previous one.
2.6. Renewal: Once the existing Subscription Period expires, the new one automatically starts unless either Customer or Service Provider sends the other Party a termination notice no later than 30 (thirty) days before the expiry of the current Subscription Period. Service Provider will notify Customer 60 (sixty) days in advance – first notification - and 45 (forty-five) days in advance – second notification - about the expiry of the current Subscription Period.
2.7. Fee: Fee represents an amount the Customer is to pay Service Provider for Access to the Platform (for each Billing Cycle). The fee is paid at the start of each Billing Cycle, for the whole Billing Cycle. The fee does not include VAT or any other taxes (including the WHT if applicable) but represents an amount that is to be credited to the Service Provider account. Each Service Provider invoice is to be paid within the deadline stated on the relevant invoice and if no such period is stated, within the next 15 (fifteen) days. Service Provider may not change the Fee during the Subscription Period i.e. any increase or decrease to the Fee applies only in the following Subscription Period provided that Customer was informed about the new Fee at least 60 (sixty) days before the expiry of the current Subscription Period and did not terminate this Agreement.
2.8. Onboarding: Customer may request onboarding training. If so, the cost of such onboarding is charged separately to the Customer in the amount agreed separately between the Parties. The onboarding fee is a one-time fee and does not include VAT or any other taxes (including the WHT if applicable) but represents an amount that is to be credited to the Service Provider account as remuneration for the onboarding services.
2.9. Remaining Fee: This means the proportional part of the Fee that is paid and remains unused as a result of replacing the Subscription (actual days vs total days of the replaced Subscription Period).
2.10. Start Date: Means the date stated as the Start Date in the Purchase Order.
2.11. Access: This means the right of the User to access and use the Platform in line with the Platform Documentation.
3. Changes (seats or subscription plan)
3.1. Slots: Customer may at any time change the number of the Slots. Any increase to the number of Slots will have an immediate effect. In such case (a) the new Subscription with this new increased number of Slots starts and (b) the Fee for the (first) new Subscription Period will be reduced for the Remaining Fee. On the other hand, any decrease in the number of Slots applies from the first day of the next Subscription Period.
3.2. Subscription Plan: Customer may at any time change the Subscription Plan. Any upgrade will have an immediate effect. In such case (a) the new Subscription with this new increased Subscription Plan starts and (b) the Fee for the (first) new Subscription Period is reduced for the Remaining Fee. On the other hand, any decrease to the Subscription Plan applies from the first day of the next Subscription Period.
3.3. General: The Parties agree that a decrease to the number of the Slots or to the Subscription Plan or termination of this Agreement may never result in credit being granted to the Customer nor in Service Provider having an obligation to return any amount of the Fee to the Customer.
4. Aviability
4.1. SLA: The Parties mutually agree and hereby accept SLA. Service Provider may at any point in time unilaterally change the SLA. In that case, the new / amended version applies from the following Subscription Period provided that Customer was informed about the new / amended SLA at least 60 (sixty) days before the expiry of the current Subscription Period and did not terminate this Agreement.
5. Personal data
5.1. Data controller: Service Provider is the data controller for Customer and User data collected in the registration process as well as Customer and User data collected during the use of the Platform. The customer is on the other hand the data controller for Candidate data collected via the Platform.
5.2. Data Processing Addendum (DPA): The Parties agree that the processing of personal data that occurs based on this Agreement and via the Platform is subject to DPA. The Parties hereby accept the DPA.
6. Liability
Service Provider’s total liability arising out of or related to this Agreement, whether in contract, tort, or otherwise, shall not exceed the total amount paid by the Customer for the Subscription Plan in the most recent twelve (12) month billing cycle. In any case, the maximum liability shall not exceed the annual subscription fee paid by the Customer, regardless of the number or nature of claims.
6.1. Exclusion of Certain Damages: Under no circumstances shall Service Provider be liable for any indirect, consequential, incidental, special, exemplary, or punitive damages, or for any loss of profits, revenues, business opportunities, or data, whether arising out of contract, tort, negligence, strict liability, or otherwise, even if Service Provider has been advised of the possibility of such damages and even if any limited remedy fails of its essential purpose.
6.2. Scope and Applicability: The limitations and exclusions apply:
to any and all claims, regardless of the theory of liability, including negligence;
regardless of the form of action - whether in contract, tort, strict liability, or otherwise;
even if Service Provider was advised of or could have foreseen the possibility of such damages; and
even if any remedy provided in this Agreement fails of its essential purpose.
If applicable law limits the enforceability of any part of this Section, the liability of Service Provider shall be limited to the maximum extent permitted by such law. For clarity, these limitations also apply to any liability of Service Provider’s affiliates, licensors, service providers, subcontractors, officers, directors, employees, agents, and representatives
7. Termination
7.1. This Agreement has been concluded for an indefinite period. Any Party may at any point in time, unilaterally, by sending a termination notice to the other Party, terminate this Agreement without cause. In such a case, the termination will take effect once the existing Purchase Order elapses.
7.2. In case of a material breach of the Service Provider Documentation, either Party may terminate this Agreement with immediate effect, provided that the breach is not cured within 15 (fifteen) days after a written notice to remedy the breach is given to the faulting Party. In such a case, the existing Purchase Order is also immediately terminated. Nevertheless, a breach of the SLA may be a reason to terminate this Agreement only when no other cure or compensation is foreseen as a remedy for such a breach.
8. Final
8.1. By entering into this Agreement the Parties also accept the Service Provider Documentation. In case of inconsistencies between those documents, the following priority applies: the Purchase Order, this Agreement, SLA, and lastly Terms and Conditions.
8.2. All relations between Service Provider and Customer which are not specifically regulated by this Agreement shall be governed by and construed in accordance with Croatian law.
8.3. Service Provider and Customer shall endeavor to resolve all disputes regarding the interpretation, application, or fulfillment of the Agreement amicably, otherwise, they shall be settled before the court of competent jurisdiction in Zagreb.