End User Licence Agreement

You (the “End User”) are being granted a licence to access and use the Cezanne Service, as defined below,

This agreement does not cover the commercial arrangements for such licence and use and does not contain the provisions required by the Data Protection Legislation for the use of the Cezanne Service: those aspects are established in the agreement between you and your Authorised Provider;

The terms and conditions of this End User Licence Agreement (“EULA”) govern some other aspects of the use of the Cezanne Service by you.

Please note that if you or any of your Affiliates is a competitor of Cezanne, access to the Cezanne Service is not permitted except with Cezanne’s prior written consent. Access to the Cezanne Service is also not allowed for any benchmarking or competitive purposes.

1. Definitions

In this End User Licence Agreement the following terms shall have the following meanings:

‘Affiliate’	means in relation to any party, any parent entity, subsidiary entity or entity coming under common ownership or control with that party, but any such entity shall be deemed an Affiliate only as long as such liaison exists;
‘Authorised Provider’	means the company with which you are contracting the use of the Cezanne Service;
‘Cezanne Service’	means a set of Service Items, or all Service Items collectively, as the context dictates;
‘Cezanne Technology’	means all of the proprietary technology of Cezanne and its Affiliates (including software whether in the form of source code or compiled code, documentation, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to the End User as part of, or in connection with, the provision of the Cezanne Service;
‘Cezanne’	means Cezanne HR Limited, a company registered in England with company number 8314801 whose registered office is at 5th Floor 57 Southwark Street, London, United Kingdom, SE1 1RU;
‘Content’	means the audio and visual information, documents, software, products and services contained in the Cezanne Service or made available to Users in the course of using the Cezanne Service;
‘Data Protection Legislation’	means the GDPR and the UK Data Protection Act 2018;;
‘Documentation’	means the online help files, training files, knowledge base articles published in Cezanne’s online End User support portal, instruction manuals or other written or recorded documents (including videos) provided by Cezanne or its Affiliates relating to the use of the Cezanne Service;
‘Effective Date’	means the date upon which this EULA is entered into by Cezanne and the End User by means of express approval of this EULA by the End User through its electronic or physical signature of this document;
‘End User’	means the company (or other entity), including its Affiliates, that intends to use the Cezanne Service, and agrees to the terms of this EULA for such use;
‘EULA’	means this End User Licence Agreement;
‘Force Majeure’	means anything outside the reasonable control of a party, including but not limited to any act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; or government restrictions (including the denial or cancellation of any export or other licence);
‘IPR’	means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, business names and logos, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
‘GDPR’	means the European Union Regulation 2016/679 known as the General Data Protection Regulation;
‘Planned Maintenance Windows’	means 09:00 hrs to 12:00 hrs GMT (or BST in summer) on Saturdays and other periods that Cezanne notifies to the End User with messages in the log-on screen;
‘Planned Maintenance’	means maintenance, Updates, installation of new versions and repairs to hardware and software that are non-critical and not urgent;
‘Release’	means a version, distinct from and modified relative to previous versions, of the Cezanne application software that Cezanne makes generally available to its users;
‘Service Item’	means a module of the Cezanne software application, developed, operated and maintained by Cezanne, accessible via a web address designated by Cezanne, to which the End User is being granted access under this EULA, including any Cezanne Technology and Content that Cezanne in its discretion makes available as part of the Service Item but excluding any Third-Party Application;
‘Service Regulations’	means regulations introduced by Cezanne as set out in section 11 of this EULA;
‘Service Start Date’	means the date when credentials to enter the Cezanne Service are first provided to the End User;
‘Third-Party Application’	means an on-line, web-based application or off-line software product supplied or licensed by a third party (e.g.: Google or Bing applications), which interoperates with the Cezanne Service;
‘Third-Party Technology’	means all of the proprietary technology of a third party (including software whether in the form of source code or compiled code, documentation, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to the End User as part of, or in connection with, the provision of a Third-Party Service Item;
‘Update’	means any update, correction or enhancement to a Service Item that Cezanne makes available, whether as a Release, or as a hot-fix that is put into effect between Releases (such as an emergency bug-fix patch or a correction to help, translation or documentation files);
‘Users’	means employees, directors, consultants, agents or contractors of the End User and/or its Affiliates who receive a user account and/or password to access the Cezanne Service online.

2. Licence to use the Service

2.1 The End User is granted a non-exclusive, non-transferable licence to use the Cezanne Service in accordance with the Service Regulations solely for the internal business purposes of the End User and of the End User’s Affiliates. No additional implied rights are granted beyond those specifically mentioned in this section.

2.2 The licence is effective from the Service Start Date, and it will continue indefinitely unless this EULA is terminated by either Cezanne or you, or it comes to an end, in accordance with its terms.

2.3 The licence granted in section 2.1 is subject to any limit regarding individual Service Items, the number of employee records and/or other limitation or condition in relation to each Service Item as agreed between Cezanne and the Authorised Provider.

2.4 The End User may not: (i) lease, loan, resell, assign, license, distribute or otherwise commercially exploit or make available to any third party the Cezanne Service or the Content in any way; (ii) disassemble, reverse compile, or reverse engineer any part of the Cezanne Service or Content unless required by applicable law; (iii) access or use the Cezanne Service or Content to develop or support, and/or assist a third party in developing or supporting, products or services whether competitive to Cezanne or not; (iv) “frame” or “mirror” any Content on any other server or wireless or other Internet-based device; or (v) permit access to or use of the Cezanne Service by or on behalf of any third party or any person other than a duly authorised User, except as specifically permitted in this EULA. Cezanne reserves the right to electronically monitor the End User’s use of the Cezanne Service.

2.5 The End User may not modify the Cezanne Service or the Content, or make derivative works based on them.

2.6 All IPR and title to the Cezanne Technology shall remain with Cezanne and/or its licensors and subcontractors and no interest or ownership in the Cezanne Service, the Cezanne Technology, the IPR or otherwise is transferred to the End User under this EULA.

2.7 The End User must not remove any proprietary marks or copyright notices from the Cezanne Technology or the Cezanne Service.

2.8 The End User shall own and retain sole ownership of all End User Data and, to the extent the End User owns it, of any associated intellectual property rights.

2.9 If the Customer chooses to display its name, logo and other trademarks in the creation of correspondence, documentation and website front ends within the Service, the Customer grants Cezanne a non-exclusive, non-transferable revocable licence to do so.

3. Duration and Termination

3.1 This EULA shall commence on the date it is executed and, subject to earlier termination by either party in accordance with its terms, shall continue indefinitely.

3.2 Cezanne may terminate this EULA in case of material breach of any term by the End User giving the Authorised Provider 30 days’ written notice.

3.3 This EULA will automatically terminate, unless differently agreed between the parties, in case the End User has had no active employees records in the Cezanne Service for a period of three consecutive months.

3.4 Upon termination of this EULA Cezanne will immediately cease providing the Cezanne Service to the End User and the licence granted under this EULA shall terminate.

4. Data Interoperability, Third-Party Applications and third-party providers

4.1 Cezanne will not be liable for errors or loss or corruption of End User Data when such errors or data loss or corruption occur when data is managed outside of the Cezanne Service, or are a result of faults in batch data upload processes, even if the extraction of data from the End User Data and/or the loading of data into the End User Data has been performed using interoperability tools, such as application programming interfaces (APIs), or other kinds of utility or support software, provided by Cezanne.

4.2 If the End User uses any third-party products or services, including without limitation any Third-Party Applications or any other non-Cezanne applications and any third-party implementation, localisation, configuration and other consulting services, and/or if the End User exchanges any data with a third-party provider in connection with the Cezanne Service, including through the use of application programming interfaces (APIs) provided by Cezanne to access End User Data, the arrangements for all such transactions are solely between the End User and the applicable third-party product or service provider; Cezanne does not warrant or support any such third-party products or services, whether or not they have been recommended by Cezanne, or designated by Cezanne as “certified” or otherwise.

4.3 If the End User installs or enables any Third-Party Applications, or services (such as web services) for use with the Cezanne Service, the End User acknowledges that Cezanne may allow providers of such external Third-Party Applications and services to access End User Data as required for interoperability with the Cezanne Service. Cezanne will not be held responsible for any disclosure, modification or deletion of End User Data resulting from any access by such third-party application or service providers.

4.4 Cezanne may include within the Cezanne Service features that rely on interoperation with Third-Party Applications (e.g. Google or Bing applications). Continuing availability of any such application may in future depend upon the End User obtaining access directly from the application provider. Cezanne provides no warranty regarding continued availability of any such application and the End User acknowledges that if any such provider ceases to make a Third-Party Application available for interoperation with the Cezanne Service on terms that Cezanne deems reasonable, Cezanne may in its discretion remove such feature(s) from the Cezanne Service without incurring any liability to the End User.

5. Data Protection

5.1 Each party undertakes to comply with its obligations under Data Protection Legislation.

5.2 To the extent that the End User maintains personal data as part of the End User Data to be processed using the Cezanne Service, the parties acknowledge that Cezanne is a processor engaged to process data by the Authorised Provider, who in turn is the processor engaged by the End User.

5.3 5.3 Since the provision of data processing service is not directly between Cezanne and the End User, but through the Authorised Provider, this EULA is not a data processing agreement between Cezanne and the End User. Both Cezanne and the End User, respectively, warrant that they have a data processing agreement in place with the Authorised Provider, to regulate all aspects of data processing between the parties, including, but not necessarily limited to, the aspects required to be defined in accordance with art. 28 paragraph 3 of GDPR.

5.4 The End User must ensure and warrants that any personal data that it supplies or discloses to Cezanne has been obtained fairly and lawfully with all necessary approvals from persons whose data is being processed and registrations with authorities to permit Cezanne to process personal data pursuant to its obligations under this EULA.

6. Warranties

6.1 Each party warrants that: (i) it has full corporate power and authority to enter into and perform its obligations under this EULA; (ii) its execution and performance of its obligations under this EULA does not violate or conflict with the terms of any other agreement to which it is a party; (iii) it has not provided false or fraudulent contact information to the other party; and (iv) it will respect all applicable laws and regulations, governmental orders and court orders, if any, which relate to this EULA.

6.2 The End User warrants that it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this EULA.

6.3 Cezanne warrants that: (i) it has the right to license the software constituting the Cezanne Service; (ii) such software will perform substantially in accordance with the Documentation; and (iii) the Cezanne Service will be performed with reasonable skill and care and in a professional manner in accordance with good industry practice.

6.4 The warranties in section 6.3 do not exclude the possibility of bugs, malfunctions or other deficiencies in the software or in other elements of the Cezanne Service, and in no case cover damages relating to: (i) interoperation with any Third-Party Applications (other than Third-Party Service Items) or non-Cezanne software, services or content; (ii) any third-party-provided connectivity; (iii) any modifications made to the Cezanne Service not carried out by Cezanne; or (iv) any failure by the End User to comply with the Service Regulations.

6.5 Except as expressly stated in this EULA, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to all implied warranties of satisfactory quality and fitness for purpose) are excluded to the fullest extent permitted by law. No warranty is made regarding the results the End User can achieve from using the Cezanne Service nor that the Cezanne Service will operate uninterrupted or error free.

7. Liability

7.1 The parties do not exclude or limit their liability to each other for wilful breach of this EULA, fraudulent misrepresentation, death or personal injury caused by any negligent act.

7.2 Subject to section 7.1 the parties shall not be liable to each other for any damage, loss of profit or consequential loss arising out of or related to this EULA or in tort (including negligence or breach of statutory duty), or misrepresentation however arising, even if the party was advised of the possibility of such damages.

7.3 Subject to section 7.1 the total liability of one party to the other (whether in contract, tort or otherwise) for any claim relating to or arising under this EULA, including any indemnity, will be limited to an aggregate amount of £1,000.

8. Security

8.1 The End User shall maintain appropriate security measures to ensure that access to the Cezanne Service is limited as set out under this EULA. In particular the End User must: (i) treat any identification, password or username or other security device for use of the Cezanne Service with due diligence and care; (ii) take all necessary steps to ensure that they are kept confidential, secure and are used properly and are not disclosed to unauthorised persons; and (iii) ensure that each user account for the Cezanne Service is only used by the User to whom it has been assigned. The End User is responsible for all activities that occur under the End User’s and Users’ user accounts and agrees to notify Cezanne promptly upon becoming aware of any unauthorised use of the Cezanne Service or other breach of security in relation to them.

8.2 Cezanne may suspend access to all or any part of the Cezanne Service at any time if, in Cezanne’s sole reasonable discretion, the integrity or security of the Cezanne Service is in danger of being compromised by acts of the End User or any User.

9. Maintenance and Support

9.1 Planned Maintenance. Cezanne will carry out Planned Maintenance during Planned Maintenance Windows. Cezanne reserves the right to change the routine Planned Maintenance Window to an alternative window of the same length upon giving adequate notice to the Authorised Provider.

9.2 Emergency Maintenance. Cezanne will where possible provide at least 2 hours prior notice by posting a notice on the log-in screen before carrying out emergency maintenance, i.e., maintenance, Updates, repairs to hardware and software related to resolving immediate problems causing instability in the Cezanne Service. However, when necessary, work may commence at any time and will continue until completed if in Cezanne’s reasonable opinion the change will not cause material degradation to the End User’s specific environment and/or is otherwise necessary or desirable for the overall maintenance or improvement of the functionality, security or performance of the Cezanne Service. Cezanne will use reasonable endeavours, but cannot guarantee, to carry out any such emergency maintenance outside of Business Hours.

9.3 Updates. Periodic Updates to the Cezanne Service will be applied to improve functionality, performance and/or security at the sole discretion of Cezanne. Some Updates may remove or diminish some existing functionality in a non-material way. Updates to the Cezanne Service do not include provision of new Service Items, such as new modules of the Cezanne application software.

10. Assignment and Relationship between Parties

10.1 No party may assign or transfer its rights under this EULA, except to an Affiliate, without the prior written consent of the other party, such consent not to be unreasonably withheld.

10.2 Cezanne may use sub-contractors in the provision of the Cezanne Service and shall be responsible for the acts of such sub-contractors.

10.3 Cezanne and the End User are independent contractors and nothing in this EULA will be construed as creating an employer-employee relationship.

10.4 The parties agree that third parties have no rights to make a claim under this EULA for breach of contract, unless such claim cannot be excluded by mandatory law.

11. Service Regulations

11.1 Cezanne may introduce and publish Service Regulations, that may include, but not be limited to: (i) minimum specifications for equipment (such as PCs) or software (such as browsers) required to use the Cezanne Service; (ii) acceptable use policies, privacy and security policies, and other regulations to ensure that the security and integrity of the Cezanne Service are maintained; (iii) licence terms and conditions applicable to any Third-Party Applications and content made available by Cezanne; (iv) limits on the amount of storage space utilized by the End User Data, and other restrictions to prevent unreasonable loads being imposed on the Cezanne Service; and/or (v) regulations to ensure that any database or other applications which form part of the Cezanne Service are used to the best effect and within their capacities.

12. Miscellaneous

12.1 If a provision of this EULA is invalid or becomes invalid then the legal effect of the other provisions shall be unaffected.

12.2 If a party is wholly or partially unable to comply with its obligations under this EULA due to a Force Majeure event, then that party’s obligation will be suspended for the duration of the Force Majeure. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under the EULA. If such event continues for more than 30 days, either party may cancel unperformed Service Items upon written notice. This section does not excuse either party’s obligation to take reasonable steps to follow its normal disaster recovery procedures.

13. Governing Law, Jurisdiction and Language

13.1 This EULA shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this EULA.

13.2 Where Cezanne has provided the End User with a translation of the English-language version of the EULA, then the End User agrees that the translation is provided for convenience only and that the English-language version(s) of the EULA shall govern the End User’s relationship with Cezanne. If there is any contradiction between what the English-language and translated versions say, then the English-language version shall take precedence.