MyHR Terms of Service
These terms and conditions of service ("Terms") regulate the business relationship between you and us. By using or agreeing to purchase our Services in any way, you agree to be bound by these Terms.
In New Zealand we are: MyHR Ltd (referred to in these Terms as "we", "us", "our" or "MyHR")
Our address is: 485c Rosebank Road, Avondale, Auckland, New Zealand
In Australia we are: MyHR Australia Pty Ltd (referred to in these Terms as "we", "us", "our" or "MyHR")
Our address is: Level 4, 55 Clarence Street, Sydney, NSW 2000, Australia
Our website is: myhr.works
Our email address is: email@example.com
You are: a customer of our Services.
We reserve the right to amend these Terms (including by issuing a new or replacement version of these Terms) at any time and in any manner at our sole discretion by either: (a) posting the amendments or the new or replacement version of these Terms on our Website and/or with the MyHR Software; and/or (b) sending information regarding the amendments or a copy or link to the new or replacement version of these Terms to the email address you provide to us.
You are responsible for regularly reviewing our Website for any amendments to these Terms.
1.1 In these Terms:
"Affiliate" means any company or body corporate which you control, which controls you, or which is controlled by the same person who you are controlled by. In relation to a company or body corporate, "control" refers to having, directly or indirectly, the power to exercise more than 50% of the votes which may be exercised by the shareholders or members of that company or body corporate and/or the power to appoint a majority of the board or governing body of that company or body corporate.
"Aggregated Data" means any data or information arising or created by our aggregation of Customer Data, including with other data or information uploaded or inputted into the MyHR System by or on behalf of one or more of our customers.
"Consulting Services" means the HR consulting and support services we may offer from time to time under, as part of or in connection with a MyHR Software Subscription, including our Restructure+ and Recruit+ services.
"Contract Jurisdiction" means the legal jurisdiction whose laws will govern Our Contract, as stated at the start of these Terms.
"Customer Data" means your data, information, agreements, documentation and content which you, any employee or person acting on your behalf, or any applicable Third Party Product Provider uploads, inputs into or sends to the MyHR System or otherwise provides to us.
"Documentation" means any documentation which we may provide to you from time to time in connection with the Services, which may include template employment agreements, HR handbooks and employment or workplace policies.
"Intellectual Property" means trade marks, rights in domain names, copyright, patents, registered designs, circuit layouts, rights in computer software, databases and lists, rights in inventions, confidential information, know how and trade secrets, and operating manuals and training manuals.
"MyHR Account" means the account we establish for you for the purposes of accessing and using the MyHR Software.
"MyHR Software" means our HR management software (as updated or revised from time to time) which is made available to users as a service via an internet browser.
"MyHR Software Subscription" means a subscription to use the MyHR Software, which will include (among other things) the number of employees and/or contractors with respect to which you may use our Services and Documentation.
"MyHR System" means our system comprising the MyHR Software and the associated software, servers and hardware which we use to host, provide, maintain and support the MyHR Software and data, information, documentation and content uploaded or inputted by users of the MyHR Software.
"Losses" means losses, damages, costs, expenses, fines and penalties.
"Our Contract" means the contract between you and us, as defined in clause 2.1.
"Prices" means the prices, fees and charges for our Services.
"Privacy Laws" means any legislation, regulations or other laws relating to the protection of personal information or data.
"Quote" means a quote, proposal or pricebook (or any similar document) which we have provided to you in writing and which sets out the Prices offered to you.
"Sales Tax" means any goods and services tax, value-added tax or other similar tax applicable to or levied on our supply of the Services to you.
"Services" means the provision of the MyHR Software, the Consulting Services and such other administrative or ancillary services we may offer from time to time under, as part of or in connection with a MyHR Software Subscription.
"Territory" means the territory stated at the start of these Terms.
"Third Party Product Provider" is defined in clause 10.2(a).
"Trial Period" is defined in clause 2.2.
"Website" means our website at the URL stated at the start of these Terms, or any replacement URL from time to time, as that website may be updated, modified or replaced from time to time.
1.2 In these Terms, unless the context requires otherwise:
(a) references to a "person" include an individual, company, corporation, partnership, firm, joint venture, association, trust, unincorporated body of persons, governmental or other regulatory body, authority or entity, in each case whether or not having a separate legal identity; and
(b) the term "includes" or "including" (or any similar expression) is deemed to be followed by the words "without limitation".
2 Our Contract
2.1 In order to receive our Services you will need to be given access to a MyHR Account. Upon access being given a legally binding contract between us and you will come into effect ("Our Contract"). Our Contract will comprise these Terms and, if you agree to purchase a MyHR Software Subscription, any additional terms and conditions applicable to your MyHR Software Subscription and/or our Services which we have previously notified you of.
2.2 We may, at our absolute discretion, give you access to a MyHR Account and the MyHR Software on a free, trial basis for a period of 14 days or such other period as we may specify ("Trial Period"). During the Trial Period:
(a) You will not need to pay the Price for any of our Services;
(b) You may only use the Services and Documentation in relation to one fictional employee. You may not use or rely on any of the Services or Documentation for any of your actual employees or contractors.
(c) You must not copy, adapt or modify any Documentation.
(d) We will not provide you any Consulting Services. Our HR consultants will only describe to you the type of assistance and support they could provide in relation to any issue or matter if you proceeded to purchase a MyHR Software Subscription.
(e) We will have no liability under or in connection with Our Contract or the Services (whether in contract (including under an indemnity), tort or otherwise).
2.3 At the end of the Trial Period, if you wish to purchase a MyHR Software Subscription, you will need to complete our sign-up and on-boarding processes and Our Contract will continue. If you do not wish to purchase a MyHR Software Subscription, Our Contract will end, we will close your MyHR Account and remove your access to the Services, and you must cease all use of the Documentation and return it to us if we require.
2.4 Your MyHR Software Subscription will commence once you have completed our sign-up process and we have confirmed this to you in writing.
2.5 We may (at our absolute discretion) decline any order, registration or request for our Services, whether on a free, trial or paid basis.
2.6 Our Contract records the entire understanding and agreement between you and us relating to the Services, and supersedes all previous understandings or agreements (whether written, oral or both) relating to the Services.
3 Your account with us
3.1 You warrant and undertake that you have provided as part of our sign-up process, and will continue to provide, accurate, up-to-date, and complete information about yourself and your business. This includes maintaining under your MyHR Account accurate and up-to-date information (including copies of employment agreements) about the employees and contractors that you and (where applicable) your Affiliates engage in your business.
3.2 We need this information to provide you with the Services. Incomplete or incorrect information may affect the quality of Services we provide and we are not liable for any issues or Losses that arise as a result of incomplete or incorrect information. For example, if you operate in New Zealand this information is particularly important in relation to the 90-day trial period. As at 1 April 2020 employers of 20 or more people are not able to use a 90-day trial period. Should we provide support for a 90-day trial period on the assumption that you have less than 20 employees and it is later determined that a trial period is invalid due to employees we were unaware of, we are in no way liable for any Losses you incur as a result of the support we provided to you.
3.3 You are responsible for maintaining the confidentiality of your MyHR Account credentials (including passwords) and for preventing any unauthorised person from using your computer or MyHR Account to access our Services.
3.4 You accept responsibility for all activities that occur under your MyHR Account. You must tell us immediately if you believe someone has accessed your MyHR Account without your authority and also log-in to your MyHR Account and change your password.
3.5 You may have an unlimited number of users accessing or using the Services under your MyHR Account, categorised as “Owner” or “Manager”. You must ensure that your users comply with your obligations under Our Contract as if they were a party to it.
3.6 Your employees may access some of their information via employee self-service functionality provided by the MyHR Software. It is their responsibility to maintain as confidential the passwords they use to access this information. Providing employees with access to their information via the self-service functionality does not provide a full legal compliance solution in relation to the provision of access to personal information under applicable Privacy Laws. You must remain aware of and comply with your legal obligations in this respect.
4 Price and payment
4.1 The Prices for our Services are as set out in the relevant Quote or, in the absence of any such Quote been given, as set out on our Website.
4.2 We may increase any or all of our Prices at any time. We will endeavour to give you at least eight (8) weeks' notice of any increase to our Prices. If the increase is not acceptable to you, you may terminate Our Contract in accordance with clause 16 below.
4.3 You must pay the applicable Prices via credit card or such other payment method as we may agree with you from time to time. Where payment is by credit card or direct debit, you authorise us to arrange withdrawal of funds immediately and each month without further reference to you.
4.4 Unless stated otherwise in a Quote or on our Website, all Prices will be charged monthly in advance with payment due in full (without set-off) by the fifth day of the month.
4.5 If you fail to pay any amount in full by the due date, the overdue amount will bear default interest until the date on which payment of the overdue amount is made in full. Default interest will accrue and be calculated on a daily basis at 12% per annum and will be compounded monthly.
4.6 You must reimburse us (on a full indemnity basis) for all costs incurred by us (including legal and/or collection agency costs) in recovering and/or attempting to recover from you any overdue amounts.
4.7 All payments are non-refundable (including upon any suspension or termination under clause 16), unless otherwise agreed at our sole discretion or required by applicable law.
4.8 Your MyHR Software Subscription and the associated Price is based on the number of employees and/or contractors in your and (where applicable) your Affiliates' organisation or the number of employees and/or contractors you elect, in consultation with us, to be covered by your MyHR Software Subscription.
4.9 We accept, for some organisations, that using the MyHR Software only for a specific division, department or region may be all that is required. The MyHR Software’s unique flexibility allows this to occur. However, such arrangements may not be used by you to avoid paying the correct Price. Our Services and Documentation are not available to, and must not be used in relation to, any employees or contractors which exceed the limit of or are not otherwise covered by your MyHR Software Subscription.
4.10 We may from time to time require you and (where applicable) your Affiliates to provide us with access to your systems, premises, documents, records and information for the sole purpose of verifying the number of employees and/or contractors in respect of which you are using the Services and/or Documentation. We will keep all such documents, records and information confidential (except as required by law). If we require access to your systems and/or premises, we will adhere to any reasonable security and health and safety policies which you and (where applicable) your Affiliates notify to us in advance.
4.11 Should we discover you are using or “repurposing” our Services and/or Documentation for employees or contractors in excess of the limit of your MyHR Software Subscription we may charge you an amount equivalent to the highest current, per-employee monthly fee, as a 12-month lump sum (irrespective of the timeframe you have been receiving the Services) and an additional consultancy charge of NZD $1,200 plus applicable Sales Tax to cover any investigation and/or remedial costs.
5.1 Unless expressly stated otherwise in a Quote or on our Website (as applicable), all Prices are stated exclusive of Sales Tax.
5.2 With the exception of taxes on our income, you must pay all applicable taxes, duties and levies which may be levied or assessable in connection with the provision of the Services to you, including Sales Taxes. Where we are required by law to collect and/or account for any such tax, duty or levy, you must pay this to us at the same time and by the same means as payment of the applicable Prices are due under these Terms.
5.3 If you are required by law to make any deduction or withholding from any amount paid or payable by you under Our Contract, then that amount will be increased to extent necessary to ensure that, after the making of the deduction or withholding, we receive and keep a net amount equal to the amount which we would have received and retained if the deduction or withholding had not been made.
6 Our provision of the Services
6.1 We provide the MyHR Software as a service via an internet browser. In order to access the MyHR Software, you will need your own internet access and computer equipment – we are not responsible for arranging or providing this.
6.2 Our other Services will be provided over the phone and/or by email. We do not provide face-to-face consultation services, unless otherwise agreed. Should this occur additional charges may apply.
6.3 If we are not able to provide your Services within 2 days of the date of your order, we shall endeavour to notify you by email to tell you the likely provision date.
6.4 You acknowledge and agree that we may from time to time introduce different levels of MyHR Software Subscriptions which offer different functionality or features and that, if so, you shall only be able to access the functionality and features included in your then current MyHR Software Subscription.
6.5 In certain cases we may agree (in writing) to make the Services available to some or all of your Affiliates. In this case:
(a) your MyHR Software Subscription will need to include the relevant number of your Affiliates' employees and contractors and the Prices will be calculated accordingly;
(b) you must ensure that your Affiliates comply with your obligations under Our Contract as if they were a party to it; and
(c) where an Affiliate operates in a jurisdiction outside of the Territory, unless we expressly state otherwise, we do not promise or represent that our Services or Documentation will be compliant with or suitable for use under the laws of that jurisdiction or any applicable states within that jurisdiction.
6.6 We may change the nature, details or provision of the MyHR Software, the Services and/or the Documentation at any time and at our sole discretion. Such changes may be required to comply with relevant legislation but do not have to be. We may also cease to make available certain Services (other than the MyHR Software or any Services for which you have prepaid the Price) at any time and without terminating Our Contract.
6.7 If a change we make in the provision of the MyHR Software and/or Services involves action on your part, and you do not take that action, you may not be able to access or receive the Services. This will not relieve you of your obligations to pay the Prices, and we will not be liable to you for any Losses you may incur as a result of your inability to access or receive the Services.
6.8 We will do our best to maintain the MyHR Software and/or Services so that you have constant use, but there will be times when your use may be interrupted (including where this is necessary for maintenance or is due to causes beyond our control). When we are aware of the likelihood of interruptions or down-time, we will tell you in advance.
6.9 We may appoint subcontractors to perform any of the Services or our obligations under Our Contract. We will remain primarily liable to you for any breaches of Our Contract by our subcontractors.
7 Consulting Services
7.1 While our HR consultants have relevant training and experience, you acknowledge and agree that:
(a) our Consulting Services will not and do not constitute legal advice, and you must not rely on them as such;
(b) employees (or former employees) may still bring claims even where correct or appropriate processes have been followed;
(c) we can only provide you with advice, guidance or support based on the information you have provided us (which may or may not be correct or complete), and we have no control or visibility over your interactions or oral communications with, or behaviours towards, your employees and contractors;
(d) the extent to which you follow or act on our advice, guidance and support is at your sole discretion; and
(e) any decisions you take in relation to employment processes shall remain your sole responsibility (as will the outcome of those processes),
and accordingly we will not be liable to you for any Losses you or your Affiliates may suffer or incur in relation to any employee or contractor claims brought against you or your Affiliates.
7.2 If you choose not to seek our advice or guidance before managing a situation with an employee, or before commencing a formal human resources or employment relations process with an employee (including a disciplinary process, a restructure, a trial period or probation, a termination or a performance management process), we may determine at (our absolute discretion) whether to provide you with additional or ongoing support for that situation or process.
7.3 If you fail to follow our advice or guidance regarding a particular situation, or deviate from a process that we have recommended, and an employee or employees raise a claim in relation to that situation or process, we may determine at (our absolute discretion) whether to provide you additional or ongoing support with that personal grievance.
7.4 If we decline to provide you support under clause 7.2 or 7.3, or you require support that is outside the scope of our Services, we may refer you to an appropriate third party ("Third Party Adviser"), at your request. If you choose to engage with the Third Party Adviser, your relationship with the Third Party Adviser is governed by the terms of engagement you agree with the Third Party Adviser. We will not be liable for any Losses you or your Affiliates may suffer or incur which arise from that relationship or any advice, support or services provided by the Third Party Adviser.
7.5 Our Recruit+ offering is a specialised fixed price service for all aspects of the recruitment process. We do not charge an additional placement fee for any hires and if you need or wish to hire several of the candidates through a single recruitment campaign, you only pay once for our Service. You will have access to a dedicated recruitment professional who will advise and support you as required on all aspects of the hiring process, but all decision making will remain with you. We do not promise or guarantee that you will find any suitable staff, or that any staff that you choose to hire will perform their role to an acceptable standard and/or for any period of time. Our Price for this Service will be payable, and is non-refundable, irrespective of the outcome of the recruitment process.
8 Dissatisfaction with the Services
8.1 Our most important task is to ensure your satisfaction. We will always strive to reach that target. If you are not satisfied with the Services, please tell us at the earliest opportunity:
(a) exactly why you think we have failed;
(b) the date, if relevant, of the failure;
(c) when and how you discovered the failure;
(d) the result of the failure; and
(e) your suggestion as to action we should take to resolve the situation and restore your faith in us.
8.2 To do this, please contact us by email or via the Software.
9 Your responsibilities
9.1 You must not use the Services or Documentation for any purpose other than in connection with the recruitment, management and exit of your own or (with our agreement) your Affiliates' employees and contractors.
9.2 You must not allow any person (other than your contractors and employees and (with our agreements) Affiliates) to access your MyHR Account, or to access or use any Services or Documentation via your MyHR Account, without our prior written consent.
9.3 You must not use any Services or Documentation in relation to any employees or contractors based outside of the Territory, without our prior written consent. If we provide such consent, unless we expressly state otherwise, we do not promise or represent that our Services or Documentation will be compliant with or suitable for use under the laws of the jurisdiction in which those employees or contractors are based.
9.4 You must not sub-license, assign, transfer, lease, rent, share or distribute outside of your organisation, or resell the Services or Documentation, without our prior written consent.
9.5 You must not, and must not allow any other person to, obtain unauthorised access to or violate the security of, or attempt to obtain unauthorised access to or violate the security of, the MyHR System or the MyHR Software.
9.6 You must comply with our reasonable instructions and advice in relation to the use of the Services and Documentation.
10 Third Party Products
10.1 We may from time to time develop interfaces to link the MyHR System with other third party payroll or other products (each a "Third Party Product"), to enable the automated exchange of data between the MyHR System and the Third Party Product.
10.2 If you use a Third Party Product, you acknowledge that:
(a) It is your responsibility to maintain an account, subscription or licence for the Third Party Product with the provider of the Third Party Product ("Third Party Product Provider").
(b) We accept no responsibility or liability for any Losses suffered or incurred by you in relation to the operation of, or results, information or data provided or produced from or by the Third Party Product, including in relation to Customer Data entered into the Third Party Product.
(c) It is the Third Party Product Provider's responsibility to enable relevant data entered into the Third Party Product to be provided to the interface with the MyHR System. We have no control over this and do not accept any responsibility or liability for any Losses suffered or incurred by you as a result of any such data not being provided, or being provided in a corrupted or incorrect form, to the interface with the MyHR System.
(d) We may, at any time and without prior notice, cease to maintain an interface with a Third Party Product or otherwise cease to exchange data with a Third Party Product.
11.1 You acknowledge and agree that you have reviewed the nature and scope of our Services, and are satisfied that our Services are fit for your specific purposes, prior to entering into Our Contract.
11.2 To the maximum extent permitted by applicable law, all warranties, guarantees and representations (including any implied or provided for by legislation), relating to the Services and Documentation, other than those expressly set out in Our Contract, are excluded and, in particular, we give no warranty and make no representation, express or implied, as to:
(a) the adequacy or appropriateness of the Services or Documentation for your purposes;
(b) the merchantability of the Services or Documentation;
(c) the on-going availability of the Services or that your access to them will be uninterrupted;
(d) compatibility of the MyHR Software and/or Services with your equipment, software or telecommunications connection;
(e) the compliance of the Services or Documentation with any law; or
(f) the Services and Documentation not infringing any third party Intellectual Property or other rights.
11.3 Nothing in these Terms will have the effect of disclaiming, excluding or limiting any warranties, conditions, guarantees, liability or remedies for which it is unlawful, under applicable law, to disclaim, exclude or limit.
12.1 We will not be liable to you under or in connection with Our Contract or the Services (whether in contract (including under an indemnity), tort or otherwise) for any:
(a) special, indirect, consequential or punitive Losses which you or any of your Affiliates may suffer or incur;
(b) loss of your or your Affiliates' data (including Customer Data) or inability to access such data;
(c) loss of revenues or profits;
(d) Losses which you or any of your Affiliates may incur to any third party; or
(e) Losses which you or any of your Affiliates may suffer or incur, to the extent to which these arise due to any of your or your Affiliates' acts, omissions or instructions or any incorrect or incomplete information provided by you or your Affiliates.
12.2 If, and to the extent that, we are unable to provide any Services or perform any of our obligations under Our Contract as a result of an event or circumstances beyond our reasonable control, any requirement to provide those Services or perform those obligations will be suspended and we will not be liable to you (whether in contract (including under an indemnity), tort or otherwise) in respect of any failure to provide those Services or perform those obligations.
12.3 In the event of any claim against us under or in connection with Our Contract or the Services (whether in contract (including under an indemnity), tort or otherwise), our liability to you and your Affiliates in respect of that claim is limited to the Price actually paid by you in the month during which the claim arose.
13 Customer Data
13.1 Where you upload any Customer Data to the MyHR System or provide any Customer Data to us:
(a) You must take reasonable steps to ensure that the Customer Data is accurate, correct and legible.
(b) You must (where applicable and practicable) run suitable anti-virus software. We will also use virus detection software, however we do not guarantee that any of your files, documents or material in the MyHR System will be virus-free.
(c) You must ensure that the Customer Data does not contain any content which infringes another person's Intellectual Property or which is offensive, obscene, defamatory, discriminatory, inappropriate or contrary to any applicable laws. If we consider that you have or may have breached this clause, without limiting any of our other rights or remedies, we may remove the relevant Customer Data from the MyHR System.
13.2 As between you and us, you own all rights (including Intellectual Property) in the Customer Data, except to the extent to which it incorporates our Documentation – we and/or our third party licensors own all rights (including Intellectual Property) in and to our Documentation.
13.3 We will not share or disclose your Customer Data except:
(a) where required by applicable law;
(b) to our subcontractors (including our hosting providers) and Affiliates or as otherwise reasonably required to provide the Services to you;
(c) to any person to whom we assign, or are proposing to assign, any of our rights under Our Contract;
(d) to the extent that it forms part of Aggregated Data and that Aggregated Data is being disclosed or shared in accordance with clause 13.5; or
(e) with your consent, including where you have elected to share, or the settings in your MyHR Account provide for the sharing of, Customer Data with Third Party Providers.
13.4 We may:
(a) Use, copy, reproduce, adapt and store your Customer Data to provide the Services to you and (where applicable) your Affiliates, to perform our obligations under Our Contract, and to exercise our rights under Our Contract.
(b) Aggregate your Customer Data, including with other data stored in the MyHR System, and use the resulting Aggregated Data in accordance with clause 13.5. This may include (for example) for the purpose of compiling salary survey data or data in relation to sick leave patterns.
We will not otherwise use your Customer Data.
13.5 As between you and us, we own all rights (including Intellectual Property) arising from our creation of the Aggregated Data and in the Aggregated Data itself. The following provisions apply to Aggregated Data:
(a) Subject to clause 13.5(b), we may publish, disclose, provide, use, license, sell, distribute, commercialise and exploit the Aggregated Data in any form and in any manner.
(b) We will not publish, disclose or provide to any third party any Aggregated Data:
(i) in a form where you, your Affiliates or any of your or their employees or contractors are specifically identified; and
(ii) unless we have taken reasonable steps to ensure that your Customer Data, and the identity of you, your Affiliates and your employees and contractors, cannot be readily identified in, or extracted from, the Aggregated Data.
(c) You may use any Aggregated Data we provided to you solely for internal purposes in connection with the operation of your and your Affiliates' business. You may not otherwise use or publish, disclose, provide, license, sell, distribute, commercialise or exploit the Aggregated Data.
13.6 While we have entered appropriate arrangements with our hosting provider(s) in relation to the confidentiality and security of data (including your Customer Data), we do not warrant, guarantee or promise that there will not be any authorised access to, or loss or alteration of, your Customer Data.
13.7 Where any Customer Data includes or incorporates any personal information or data that is governed or regulated by applicable Privacy Laws:
14 Intellectual Property
14.1 We and/or our third party licensors own all Intellectual Property in and to the MyHR System, the MyHR Software, the Services, the Documentation and the logos, brands and names we use in connection with our business.
14.2 We will own any new Intellectual Property which is created or developed in the course of us providing the Services.
14.3 We grant to you and (if we have given our consent to your Affiliates using the Services) your Affiliates a non-exclusive licence to use, subject to these Terms:
(a) the MyHR Software during the term of Our Contract; and
(b) the Documentation during the Trial Period (if any) and, if you purchase a MyHR Software Subscription, in perpetuity from the commencement of that subscription.
14.4 If you or any of your Affiliates provide us with any idea or suggestion for the MyHR Software or any of the Services or Documentation, we may use, develop, implement and/or commercialise that idea or suggestion without restriction and without any obligation to provide any form of compensation, royalty or benefit to you or your Affiliates.
15.1 We will indemnify you against any Losses awarded against you by a court, or which you are liable for under any settlement agreement approved by us in writing, in respect of any third party claim against you that your use of our Services or Documentation infringes any copyright of that third party or any patent of that third party which is registered in the Territory. We will not be required to indemnify you under this clause if:
(a) the claim has arisen, in part or full, from misconduct, negligence or breach of Our Contract by you or any of your Affiliates;
(b) the claim has arisen, in part or full, as a result of any infringing Customer Data or any changes or modifications to our Documentation which have not been made by us;
(c) you fail to notify us in writing within 14 days of the claim arising;
(d) you fail to give us sole control of the defence of the claim and all related settlement negotiations; or
(e) you fail to give us the assistance, information and authority necessary to defend and/or settle the claim.
15.2 You will indemnify us against all Losses suffered or incurred by us and our Affiliates:
(a) as a direct or indirect result of a breach of Our Contract by you; or
(b) in connection with any third party claim against us, to the extent that the claim relates to our use, storage or retention of your Customer Data.
This clause is intended to be for the benefit of, and enforceable by, our Affiliates.
16 Suspension and termination
16.1 We may suspend the provision of and/or access to all or any of our Services if:
(a) any amount payable by you under Our Contract becomes overdue for payment; or
(b) we believe (acting reasonably) you have breached Our Contract.
16.2 We will lift any such suspension under clause 16.1(a) upon receipt of payment of all amounts (including default interest) owing to us under Our Contract. We will lift any such suspension under clause 16.1(b) if we become satisfied that you have not in fact breached Our Contract or otherwise upon you having:
(a) remedied the breach to our reasonable satisfaction;
(b) paid to us any reasonable Losses incurred by us in connection with the breach (including investigating the breach); and
(c) taken such steps as we may reasonably require in order to prevent a recurrence of the breach.
16.3 You may terminate Our Contract at any time by giving us two (2) clear months' notice.
16.4 You may also terminate Our Contract with immediate effect by giving us notice if we commit a material breach of Our Contract and fail to remedy the breach within 30 days of you first giving us notice of the breach.
16.5 We may terminate Our Contract at any time by giving you two (2) clear months' notice.
16.6 We may also terminate Our Contract with immediate effect by giving you notice if you become subject to an Insolvency Event or you commit any breach of Our Contract and fail to remedy the breach within 30 days of us first giving you notice of the breach.
16.7 Upon termination of Our Contract:
(a) Your rights to access and use our Services shall cease.
(b) You must pay us the full Price outstanding, together with any other amounts payable under Our Contract (including, if applicable, default interest). Unless we agree otherwise, you will not be entitled to a refund of any part of the Price which has been paid in advance.
(c) Subject to you having complied with clause 16.7(b), we will allow you to complete a transfer of all your Customer Data to your own systems, and we will support you by performing system checks and will confirm this with you before closing your MyHR Account and deleting your Customer Data. However, you are responsible for ensuring that you have all of the Customer Data you require and for backing-up that Customer Data.
(d) We will, as soon as reasonably practicable but following our confirmation under clause 16.7(c), securely delete all such Customer Data from our servers and back-ups.
(e) We may retain and continue to use and deal with all Aggregated Data in accordance with clause 13.5.
(f) Clauses 7.1, 11, 12, 14, 15 and 16.7, and such other provisions of these Terms which are incidental to and required to give effect to those clauses, will remain in full force and effect.
(g) The termination will be without prejudice to either your or our rights and remedies in respect of any breach of Our Contract by the other, where the breach occurred before the termination.
17 Miscellaneous provisions
17.1 We may send notices to you via the MyHR Software, or by email, post or courier to the address that we hold for you. Notices we send via the MyHR Software or email will be deemed to have been received when sent, unless (in the case of email) we receive an automated delivery failure notification. Notices we send by post will be deemed to have been received three business days after we post them. Notices we deliver by courier will be deemed to have been received upon delivery. You may send notices to us via the MyHR Software or by email to the email address stated at the start of these Terms or such other email address as we may specify from time to time for the purposes of enquiries in relation to your MyHR Software Subscription.
17.2 You consent to us sending you commercial electronic messages (including emails, SMS and instant messages) in relation to our Services or any other services or products.
17.3 With the exception of clause 15.2 and any licence we may grant to your Affiliates under clause 14.3, nothing in Our Contract shall confer on any third party any benefit or rights.
17.4 If any provision of Our Contract is, at any time, held by to be void, invalid or unenforceable, then it shall be treated as changed or reduced, only to the extent minimally necessary to prevent it from being void and it shall be binding in that changed or reduced form. Subject to that, each provision shall be interpreted as severable and shall not in any way affect any other provision of Our Contract.
17.5 No waiver by us, in exercising any right, power or provision in Our Contract shall operate as a waiver of any other right or of that same right at a future time; nor shall any delay in the exercise of any power or right be interpreted as a waiver.
17.6 If you consider that you have a claim against us under or in connection with Our Contract or the Services (whether in contract (including under an indemnity), tort or otherwise), then you agree to attempt to settle or resolve the claim by engaging in good faith with us, including in a process of mediation if we require, before commencing litigation.
17.7 Our Contract shall be governed by and construed in accordance with the laws of the Contract Jurisdiction. You and we submit to the exclusive jurisdiction of the courts of the Contract Jurisdiction in respect of all matters concerning Our Contract.
17.8 You may not assign or otherwise transfer any of your rights or obligations under Our Contract to any other person without our prior written consent. We may assign or transfer any or all of our rights or obligations under Our Contract to any of our Affiliates or to any person purchasing or acquiring all or any part of our business and/or assets.
17.9 The rights, powers and remedies provided under Our Contract are cumulative and are in addition to any rights, powers or remedies provided by law.