1. Definitions and Interpretation
1.1 The definitions in this clause 1 apply in this Agreement.
| 1. Agreement | 2. this agreement, consisting of the Order Form and these Terms and Conditions. |
|---|---|
| 3. API | 4. the application programming interface made available to Developer by SourceWhale including, without limitation, through https://sourcewhale.app/public-api/swagger#/v1 as may be updated from time to time by incorporation. |
| 5. API Call | 6. a call from the Application via the API to the Platform. |
| 7. API Documentation | 8. means the API documentation made available to Developer at [url] as amended by SourceWhale from time to time. |
| 9. API Key | 10. the security key SourceWhale makes available for Developer to access the API. |
| 11. API Limits | 12. the restrictions set out in the Order Form as amended by SourceWhale from time to time. |
| Application | the application or applications specified in the Order Form. |
| Authorised User | a natural person, being an employee or contractor of Developer, whose identity has been registered as part of the Platform sign-on process. |
| 13. Branding Guidelines | 14. as published and amended by SourceWhale from time to time. |
| Confidential Information | information that falls within any of the following categories: (a) the terms and conditions of this Agreement; (b) it is marked as “confidential” (or similar); (c) it is of a nature that a reasonable person would (in all the circumstances) consider confidential, including information concerning a party’s business operations, finances, plans, and affairs, customers, funds, clients or suppliers; (d) similar information of third parties (including affiliates) that a party maintains in confidence; (e) in respect of SourceWhale, the functionality, design, flows, look and feel, API specifications, API documentation, data ontologies, data schemas, object code, and source code of the API, Sandbox, Software and/or Platform; or (f) any combination of the foregoing. |
| Customer | a customer of the Platform. |
| Customer Data | the data uploaded onto the Platform by or on behalf of the Customer. |
| Data Protection Legislation | as applicable, the UK Data Protection Act 2018, the EU GDPR, and any other legislation and regulatory requirements in force from time to time which apply to the Developer’s use of personal data by means of the API and/or the Sandbox. |
| Developer | the company or other organisation which has entered into this Agreement, as set out on the Order Form. |
| 17. Developer Systems | 18. the Application, together with any other network and information systems (including any hardware, software and other infrastructure) and processes operated by or on behalf of Developer that is used to access the API, make an API Call, access the Sandbox, or otherwise communicate or interact with Platform. |
| 19 . Documentation | 20. any documentation made available by SourceWhale in relation to the API, the Sandbox and in relation to this Agreement, including the Branding Guidelines. |
| Effective Date | the date given on the Order Form. |
| Initial Term | as set out on the Order Form. |
| Intellectual Property Rights | patents, trademarks, service marks, trade names, business names, design rights, copyright, database rights, knowhow and other intellectual property rights or equivalent forms of protection of whatever nature arising anywhere in the world, whether registered or unregistered and including applications for the grant of any such rights. |
| Order Form | the order form at the front of this document. |
| Parameters | the API Limits, Sandbox Limits, and other restrictions and qualifications set out in this Agreement. |
| Platform | the SourceWhale platform at https://sourcewhale.app on which SourceWhale Software is made available to Customers. |
| 21. Purpose | 22. as set out in the Order Form. |
| Renewal Term | as set out on the Order Form. |
| Sandbox | restricted SourceWhale Software account provided for the purpose of developing and testing integrations between the Application and the Software. |
| Sandbox Limits | the limits and restrictions on the use of the Sandbox as published by SourceWhale from time to time. |
| Services | access to, and use of, the API and, subject to clause 8.1, the Sandbox. |
| Software | SourceWhale recruitment productivity software as made available to the Customer and as amended from time to time. |
| 23. SourceWhale Marks | 24. the trade marks, trade names, branding, or logos made available for use in connection with this Agreement, as set out in the Branding Guidelines. |
| SourceWhale Materials | the API, Sandbox, Software, Platform, Documentation and the Services, as changed from time to time, and any derivative works, additional functionality, elements, parts, modifications or improvements thereto. |
| Term | the Initial Term together with the Renewal Term(s). |
| Terms and Conditions | these terms and conditions. |
| Working Day | a day in the UK other than a Saturday, Sunday or public holiday in England. |
2. TERM
2.1 In consideration of the payment of £1, receipt of which is hereby acknowledged, the Services shall start on the Effective Date.
2.2 This Agreement shall continue for the Initial Term, and thereafter shall renew automatically for successive Renewal Terms (unless terminated sooner in accordance with its terms).
2.3 Each party is entitled to terminate this Agreement for convenience at any time on 90 days’ written notice.
3. LICENCE
3.1 SourceWhale hereby grants Developer during the Term a non-exclusive, non-transferable, non-sublicensable licence, subject to compliance with the Parameters and the terms and conditions of this Agreement, to:
a. allow Authorised Users to access the API solely for the purposes of:
i. developing the Application to communicate and interoperate with Platform;
ii. using the developed Application to communicate and interoperate with Platform;
iii. making API Calls in compliance with the API Limits;
b. to display the Customer Data received from the API within the Application;
c. to use the Sandbox to facilitate the development of the Application.
4. RESTRICTIONS ON THE LICENCE
4.1 Developer shall not:
a. except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
i. attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the SourceWhale Materials in any form or media or by any means; or
ii. attempt to de-compile, reverse-compile, disassemble, reverse engineer any part of the Software;
b. use SourceWhale Materials to provide services to third parties other than Customers;
c. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make any part of SourceWhale Materials available to any third party except as part of the integration of the Application with Platform.
4.2 The rights provided under this Agreement are granted to Developer only, and are not granted to any client, supplier, subsidiary or holding company of Developer.
5. PROHIBITED USES
5.1 The API and Sandbox may be used only to develop and maintain the integration of the Application with the Platform and for no other purpose.
5.2 Developer agrees that it shall not use the API and/or the Sandbox to:
a. build a product or service which competes with the whole or part of Platform, Software, Services or Documentation;
b. use the API, including any part of the Application, to replicate or attempt to replace the user experience of Platform.
6. AVAILABILITY
6.1 SourceWhale shall use reasonable efforts to make the API and Sandbox available 365 x 7 x 24, subject to scheduled maintenance and the terms of this Agreement.
7. USE OF THE API
7.1 Developer’s sole means of accessing the API shall be via the API Key.
7.2 Developer shall not (and shall ensure Authorised Users do not):
a. make API Calls in excess of the API Limits;
b. design or permit the Application to disable, override, or otherwise interfere with any SourceWhale-implemented communications to Customers, consent screens, user settings, alerts, warning, or the like;
c. except to the extent expressly permitted by this Agreement:
i. combine or integrate the API or Customer Data with any software, technology, services, or materials not approved in advance by SourceWhale, including AI-related technologies, large language or other foundation models;
ii. pass or allow access to the API to any person that is not an Authorised User;
iii. pass or allow access to the Customer Data to any party other than the Customer (except as directed by the Customer);
iv. commercially exploit, sell, license or distribute any Data or any products and/or services incorporating the results retrieved using the API or via an API Call.
8. USE OF THE SANDBOX
8.1 Developer shall only have the right to use a Sandbox if so indicated in the Order Form.
8.2 If the Developer has the right to use a Sandbox, Developer agrees that:
a. the Sandbox is to be used only for testing the effectiveness of the integration of the Application with the Platform;
b. only simulated data may be submitted or uploaded on or through the Sandbox. Personal data such as real names, address, etc. may not be submitted or uploaded;
c. SourceWhale may delete data in a Sandbox on regular intervals without notice.
8.3 Developer agrees that it shall not load-test the Sandbox, and shall not use the Sandbox beyond the Sandbox Limits.
9. SUSPENSION OF API AND/OR SANDBOX
9.1 If Developer uses the Sandbox, API or Customer Data other than as specified in this Agreement, SourceWhale may, in its sole discretion, on written notice and with immediate effect:
a. terminate this agreement;
b. suspend Developer’s access and use of API and the Sandbox, with immediate effect, and maintain the suspension until Developer’s lack of compliance is resolved.
9.2 SourceWhale is entitled to add or vary at any time any limits on the use of the API or the Sandbox.
10. SECURITY SUSPENSION
10.1 SourceWhale is entitled suspend access to any part of the API and/or Sandbox immediately if SourceWhale becomes aware of a potential or actual cyber or security risk and decides that suspending all or part of the API and/or Sandbox is an appropriate way of protecting SourceWhale’s systems and/or SourceWhale’s customers.
11. DEVELOPER’S MANAGEMENT OF AUTHORISED USERS
11.1 Developer agrees that:
a. it shall be responsible for the creation and deletion of Authorised Users;
b. it shall ensure that Authorised Users comply with the terms of this Agreement and with any guidance or acceptable use policies published by SourceWhale from time to time;
c. it will not allow any Authorised User’s credentials to be used by more than one individual Authorised User unless it has been reassigned in its entirety to another individual Authorised User, in which case the original Authorised User shall no longer have any right to access or use the Platform and/or Documentation;
d. it shall ensure that each Authorised User shall keep secure the log-in for his or her use of the Platform.
11.2 Developer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the API and Sandbox and, in the event of any such unauthorised access or use, shall promptly notify SourceWhale.
12. BRANDING
12.1 SourceWhale shall be entitled to reference Developer as a user of the API in SourceWhale’s general marketing literature, including on SourceWhale’s website and other online platforms. The reference to Developer for these purposes may include a reference to Developer’s corporate name and to any of its trade names and trade marks.
12.2 SourceWhale grants to Developer a non-exclusive licence during the Term to display the SourceWhale Marks in compliance with the Branding Guidelines solely in connection with the use of the Application and not in connection with the advertising, promotion, distribution, or sale of any other products or service.
12.3 Save as provided for in this clause 12, no party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
13. INTELLECTUAL PROPERTY RIGHTS
13.1 Developer agrees that (as between SourceWhale and Developer) SourceWhale and/or its licensors own all Intellectual Property Rights in SourceWhale Materials. Except as expressly stated in this Agreement, Developer is not granted any rights to, under or in, SourceWhale Materials.
13.2 SourceWhale agrees that (as between Developer and SourceWhale) Developer and/or its licensors own all Intellectual Property Rights in the Application.
14. CUSTOMER DATA
14.1 Developer agrees that:
a. it shall only have access to Customer Data to the extent that access to the Customer Data is granted by the Customer,
b. its use of Customer Data shall be regulated by its agreement with the relevant Customer,
c. it shall at all times during the Term comply with Data Protection Legislation,
d. it shall have no recourse to SourceWhale in relation to any loss, destruction, alteration or disclosure of Customer Data.
15. INFORMATION SECURITY
15.1 Developer shall ensure that the Developer Systems, and its management and operation practices in relation to the Developer Systems, comply with information security practices considered “good” or better in the recruitment sector.
16. SOURCEWHALE’S OBLIGATIONS
16.1 SourceWhale warrants that the API and Sandbox will operate substantially in accordance with the Documentation and that the Services will be provided with reasonable skill and care.
16.2 SourceWhale warrants that it shall comply with all applicable laws and regulations with respect to its obligations under this Agreement.
16.3 SourceWhale does not warrant that the operation of the API and Sandbox will be free of error or fault.
16.4 The warranty at clause 16.1 shall not apply to the extent of any non-conformance which is caused by use of the API or Sandbox contrary to SourceWhale’s instructions or specifications, or contrary to the Documentation.
17. CONFIDENTIALITY
17.1 Each party undertakes that it will not at any time disclose to any person any Confidential Information, except as permitted by clause 17.2.
17.2 Each party may disclose the other’s Confidential Information:
a. to such of its respective employees, officers, representatives, Subcontractors or advisers who need to know such information for the purposes of carrying out their respective obligations under this Agreement. Each party will ensure that such employees, officers, representatives, Subcontractors or advisers comply with this clause 17; and
b. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
17.3 Each party may only use the other’s Confidential Information for the purpose of fulfilling its respective obligations under this Agreement.
17.4 For the avoidance of doubt:
a. the API and the API Key shall be considered the Confidential Information of SourceWhale,
b. as between SourceWhale and Developer, Customer Data shall be considered Confidential Information of SourceWhale.
18. INTELLECTUAL PROPERTY RIGHTS INDEMNITY
18.1 Developer shall defend and keep indemnified SourceWhale, its officers, directors and employees against all costs, damages, fines (including legal costs and expenses) arising from any claim from a third party that the integration of the Application with the Platform and/or any data it posts to the Sandbox infringes its Intellectual Property Rights, provided that:
a. Developer is given prompt notice of any such claim;
b. SourceWhale provides reasonable co-operation to Developer in the defence and settlement of such claim, at Developer’s expense;
c. Developer is given sole authority to defend or settle the claim,
d. the indemnity shall not apply to the extent that the third party claims relates to the specification of SourceWhale’s API.
19. CHANGES TO THESE TERMS
19.1 SourceWhale shall have the right to change the terms of this Agreement from time to time at its sole discretion, and shall give Developer 60 day’s written notice of the forthcoming change (“Change Notice”).
19.2 If Developer continues to use the Services after the expiry of the Change Notice, it shall be deemed to have agreed to the change.
20. LIMITATION OF LIABILITY
20.1 Nothing in this Agreement excludes or limits the liability of either party for:
a. death or personal injury caused by its negligence;
b. fraud or fraudulent misrepresentation;
c. the relevant party’s wilful misconduct;
d. liability pursuant to Clause 18 (Intellectual Property Rights indemnity);
20.2 Subject to Clause 20.1, neither party shall be liable for special, indirect or consequential loss.
20.3 SourceWhale shall not be liable whether in tort (including for negligence and breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses, loss or corruption of data or information.
20.4 Subject to Clauses 20.1, 20.2 and 20.3, SourceWhale’s total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this Agreement shall, in relation to any breaches occurring in a calendar year, £100 for that calendar year.
20.5 Except as expressly and specifically provided in this Agreement:
a. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this Agreement;
b. no duty of care is owed to Developer.
20.6 Developer shall be liable to SourceWhale for the acts and omissions of its Subcontractors and/or Authorised Users.
21. TERMINATION
21.1 Developer and SourceWhale may each terminate this Agreement with immediate effect by giving written notice to the other if the other commits a material breach of this Agreement and fails to remedy that breach within 30 days of being notified in writing to do so.
21.2 Either party may terminate this Agreement with immediate effect by giving written notice to the other if the other takes any step or action in connection with entering into administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction.
22. CONSEQUENCES OF TERMINATION
22.1 On termination or expiry of this Agreement for any reason:
a. all licences granted to Developer under this Agreement shall immediately terminate and Developer shall immediately cease all use of the API and the Sandbox;
b. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination, shall not be affected or prejudiced.
23. GENERAL
23.1 Force Majeure. SourceWhale shall have no liability to Developer under this Agreement if it is prevented from or delayed in performing its obligations under this Agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control but excluding circumstances where SourceWhale could have taken reasonable measures to avoid the event or circumstance (including by use of appropriate business continuity plans or alternative suppliers) and otherwise exercising a reasonable level of care, provided that Developer is notified of such an event and its expected duration.
23.2 No Set-Off. Except as expressly provided for in this Agreement or otherwise agreed, no party may by reason of any set-off, counterclaim, abatement, or analogous deduction withhold payment of any amount due to the other party.
23.3 Waiver. No failure or delay by a party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
23.4 Rights and Remedies. Except as expressly provided in this Agreement, the rights and remedies provided under this Agreement are in addition to, and not exclusive of, any rights or remedies provided by law.
23.5 Severance. If any provision or part-provision of this Agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this Agreement. If any provision or part-provision of this Agreement is deemed deleted under clause 23.5, the parties shall negotiate in good faith to agree a replacement provision that, to the greatest extent possible, achieves the intended commercial result of the original provision.
23.6 Entire Agreement. This Agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each party acknowledges that in entering into this Agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement. Nothing in this clause 23.6 shall limit or exclude any liability for fraud.
23.7 No Partnership or Agency. Nothing in this Agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
23.8 Assignment. This Agreement is personal to Developer and Developer shall not assign, transfer, mortgage, charge, subcontract, delegate, declare a trust over or deal in any other manner with any of its rights and obligations under this agreement. SourceWhale may at any time assign, mortgage, subcontract, charge, declare a trust over or deal in any other manner with any of its rights under this Agreement.
23.9 Non-Solicitation. Neither party shall, during the Term and for 12 months after its termination or the expiry, employ, solicit or entice away from the other any person who is, or has been, engaged as an employee, consultant or subcontractor of the other.
23.10 Third-party Rights. This Agreement does not confer any rights on any person or party (other than the parties to this Agreement and, where applicable, their successors and permitted assigns) pursuant to this Contracts (Rights of Third Parties) Act 1999.
23.11 Notices. Any notice required to be given under this Agreement shall either be by email to legal@sourcewhale.com, or shall be in writing (with a copy to the Legal Department) and shall be delivered by hand or sent by pre-paid first-class post or recorded-delivery post to the other party at its address set out in this Agreement, or such other address as may have been notified by that party for such purposes. A notice by email shall be deemed to have been received at 9am on the first Working Day after received. A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first Working Day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded-delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post.
23.12 Governing Law. This Agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
23.13 Jurisdiction. 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 this Agreement or its subject matter or formation (including non-contractual disputes or claims).
