End User Licence Agreement
This End User Licence Agreement ("Agreement") is made between Phoenix51 Limited (company no. 12176947), registered office Unit 4, Corum Two, Corum Office Park, Crown Way, Warmley, Bristol, BS30 8FJ ("Phoenix51", "we", "us"); and the customer accepting these terms ("Customer", "you"). It takes effect on the date you accept it (the "Effective Date"). Phoenix51 and the Customer are each a "Party", together the "Parties".
1. Background
Phoenix51 provides access to its cloud-based talent assessment platform and related services. The Customer wishes to subscribe to the Services under one or more Order Forms. The Parties agree to the terms below.
2. Definitions
Capitalised terms include: Authorised Users (the Customer's and its Affiliates' employees and contractors permitted to access the Services); Customer Data (all data and content submitted to the Services by or on behalf of the Customer or its Authorised Users, including candidate and employee data); Fees (the subscription and other fees in an Order Form); Order Form (an ordering document or agreed ordering process setting out the Services, licence metric, quantities, term and Fees); Platform (the Phoenix51 web platform and hosted infrastructure); Prohibited Data (special category data, criminal offence data, children's data unless expressly permitted, and any data the Parties agree in writing is prohibited); and Services, Support, UK Data Protection Laws and DPA as described in this Agreement. "Including" means "including without limitation".
3. Order Forms and Order of Precedence
Each Order Form forms part of this Agreement. If there is a conflict, the following order applies (highest first): the Order Form (including any Special Conditions); the DPA (to the extent about personal data processing); this Agreement; then Schedules and Documentation.
4. Subscription, Licence Grant and Scope
Phoenix51 grants the Customer a non-exclusive, non-transferable right for Authorised Users to access and use the Services during the Subscription Term, subject to this Agreement and the Order Form(s). Use is limited to the licence option(s) purchased. The Customer may permit its Affiliates to use the Services under its account, provided it remains responsible for all Affiliate activity and compliance. The Services are licensed, not sold.
5. Provision of the Services
Phoenix51 will use reasonable endeavours to make the Services available 24/7, excluding planned and emergency maintenance, force majeure, and Customer-caused issues. We aim to schedule planned maintenance outside UK business hours with reasonable notice where practicable. We may update the Services to improve performance, security or functionality; if a change materially reduces core functionality, the Customer may notify Phoenix51 and the Parties will work in good faith to resolve it.
6. Support
Phoenix51 will provide Support in accordance with Schedule 2 and may provide training and onboarding as described in the Order Form.
7. Fees, Invoicing and Payment
The Customer will pay the Fees in the Order Form. Unless stated otherwise, Fees are invoiced monthly in advance and payable immediately upon receipt, and are non-refundable except as expressly stated. Fees may be adjusted to reflect changes in the number of Authorised Users in accordance with the Order Form. Fees are exclusive of VAT and other applicable taxes. Phoenix51 may charge interest on overdue sums under the Late Payment of Commercial Debts (Interest) Act 1998 (or the rate stated in the Order Form) plus reasonable recovery costs. If Fees are overdue by 14 days, Phoenix51 may suspend access on 5 business days' notice until payment is made.
8. Term and Renewal
This Agreement starts on the Effective Date and continues on a rolling monthly basis unless terminated. Each subscription automatically renews monthly unless either Party gives notice to terminate. Either Party may terminate this Agreement or any Order Form on not less than 30 days' written notice, taking effect 30 days after the next scheduled billing date following receipt of notice. On termination: access continues until the end of the paid billing period; no refunds are provided for fees already paid; and the data export/deletion provisions apply.
9. Customer Responsibilities
The Customer will: ensure Authorised Users comply with this Agreement; maintain accurate user access controls; promptly notify Phoenix51 of unauthorised access or security incidents affecting its credentials; be responsible for its own systems, connectivity and device requirements; and ensure Customer Data is lawful, accurate so far as relevant, and used in compliance with applicable laws. The Customer must not upload or process Prohibited Data unless Phoenix51 agrees in writing and any required safeguards are in place.
10. Acceptable Use and Restrictions
The Customer must not (and must not permit anyone to): use the Services unlawfully, fraudulently or to infringe others' rights; upload malware or attempt to disrupt the Services; attempt unauthorised access or vulnerability testing without written permission; scrape or use automated means to extract data except via documented APIs; reverse engineer, decompile or create derivative works of the Platform (except as permitted by law); provide access to any third party other than Authorised Users or share credentials; use the Services to build or benchmark a competing product; or use the Services for sexually explicit, hateful, discriminatory, violent or harassing content. Where relevant (e.g. video screening), usage may be subject to fair usage limits.
11. Data Protection and Security
Each Party will comply with UK Data Protection Laws; where Phoenix51 processes personal data on the Customer's behalf, the DPA applies. The Customer grants Phoenix51 a limited licence to host, process, transmit and display Customer Data solely to provide and support the Services and meet legal obligations. Phoenix51 will maintain appropriate technical and organisational measures to protect Customer Data, and will notify the Customer without undue delay on becoming aware of a personal data breach affecting Customer Data.
12. Customer Data, Retention and Return
The Customer owns Customer Data; Phoenix51 owns the Platform and related IP. Unless otherwise stated: inactive personal data may be deleted after 12 months of inactivity; on termination the Customer has 30 days to export Customer Data, after which Phoenix51 may delete it except where retention is required by law or exists in backups (overwritten per Phoenix51's backup cycles). Phoenix51 may create and use aggregated, anonymised statistical data for analytics, product improvement and benchmarking, provided it does not identify the Customer or any individual.
13. Intellectual Property and Feedback
Phoenix51 retains all rights in the Platform, Documentation and Services, including improvements. If the Customer provides feedback, Phoenix51 may use it without restriction or compensation, provided it does not disclose the Customer's Confidential Information.
14. Confidentiality
Each Party will use the other's Confidential Information only to perform or receive under this Agreement, protect it with at least reasonable care, and disclose it only to those who need to know and are bound by confidentiality. Information is not confidential if public (other than by breach), already known, independently developed, or rightfully received from a third party. Disclosure compelled by law is permitted with notice where allowed. Obligations continue for 5 years after termination (trade secrets indefinitely).
15. Warranties and Disclaimers
Phoenix51 warrants it will provide the Services with reasonable skill and care. Except as expressly stated, the Services are provided "as is" and Phoenix51 disclaims implied warranties to the fullest extent permitted by law. The Customer is solely responsible for employment or engagement decisions and for how it interprets assessment outputs.
16. Indemnities
Phoenix51 will indemnify the Customer against third-party claims that the Services infringe UK IP rights, provided the Customer promptly notifies Phoenix51, gives it control of the defence/settlement, and cooperates reasonably; Phoenix51 may procure continued use, modify to be non-infringing, or terminate and refund pro-rata prepaid Fees. The Customer will indemnify Phoenix51 against third-party claims arising from Customer Data or the Customer's unlawful use of the Services, on similar notice/control/cooperation terms.
17. Limitation of Liability
Nothing limits liability for fraud, death or personal injury caused by negligence, or any liability that cannot legally be limited. Subject to that, neither Party is liable for indirect or consequential loss, loss of profit, revenue, goodwill or business. Subject to the foregoing, each Party's total aggregate liability under this Agreement will not exceed the Fees paid or payable by the Customer in the 12 months preceding the event giving rise to the claim.
18. Termination
Either Party may terminate an Order Form (or this Agreement if no active Order Forms remain) for material breach not cured within 14 days of written notice, or immediately if the other becomes insolvent or enters administration/liquidation. Phoenix51 may suspend or terminate for serious security risk, unlawful use or repeated Acceptable Use violations. On termination, the Customer's access is disabled, the Customer must cease use, the data export/deletion provisions apply, and accrued payment obligations remain due.
19. Publicity
Phoenix51 may use the Customer's name and logo as a customer reference and may request a quote or case study detailing usage, outcomes and service.
20. Force Majeure
Neither Party is liable for delay or failure caused by events beyond its reasonable control, provided it mitigates and resumes performance as soon as reasonably practicable.
21. Notices
Notices must be in writing and delivered by hand, courier or email to the addresses in the Order Form (or as later notified). Email notices are deemed received on the next business day after sending (unless bounced).
22. Assignment and Subcontracting
The Customer may not assign without Phoenix51's consent (not unreasonably withheld). Phoenix51 may subcontract performance (including hosting and support tooling) but remains responsible for performance and subcontractor compliance.
23. General
This Agreement and Order Forms are the entire agreement. If any provision is unenforceable, the remainder continues. Failure to enforce is not a waiver. No third party has rights under the Contracts (Rights of Third Parties) Act 1999. This Agreement is governed by the laws of England and Wales, and the courts of England and Wales have exclusive jurisdiction.
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