Terms of Service
Last updated: 25 January 2023
1 - Your Use of the Platform
1.1. The purpose of this Terms of Service, is to set out the terms and conditions that govern for the duration of the Subscription Period;
- your use of the Subscribed Services, being those of our services you agree to purchase; and
- your use of the Humaans platform (Platform), our online software application.
1.2. You may order services through an on-line registration page or a Sales Agreement. By registering, creating an account, clicking an “I agree” or “I accept” button, purchasing the Services, accessing the Platform or using the Subscribed Services, you agree to be bound to these Terms (the Agreement).
1.3. Unless expressly stated to the contrary, terms in bold shall have the meaning attributed to them in these Terms.
1.4. Once both parties have an Agreement in place, and subject to clause 2.4, we grant you (and through you, your Affiliates) a non-exclusive, non-transferable, right to use the Subscribed Services, for your internal business operations in accordance with the Humaans Documentation and the Agreement (Permitted Purpose) during the Term.
1.5. You acknowledge that the Subscribed Services do not include any services, systems or equipment required to access the internet (as may be required in order for you to access and use the Platform and the Subscribed Services).
1.6. Except as expressly stated in the Agreement, no assurance is given that the Subscribed Services will comply with or satisfy any legal or regulatory obligation of any person.
1.7. You acknowledge that access to the Subscribed Services is at all times subject to your compliance with the Agreement and we may suspend your access in accordance with clause 12 (Suspension) if you do not comply with the Agreement.
1.8. You shall: (a) be liable for all Subscription Fees and any other amounts payable to us under the Agreement (Fees); (b) be liable for the acts and omissions of the Users and any Affiliates as if they were your own; (c) only provide Users with access to the Subscribed Services via the access methods provided by us and shall not provide access to (or permit access by) anyone other than a User; and (d) ensure that any claims arising out of the Agreement (howsoever caused) are actioned only by you. However, you can claim for loss or damage incurred by any Affiliate as if such loss or damage was incurred by you.
2 - Seats
2.1. In using the Subscribed Services, you and your Affiliates may create a user account within the Platform (Seat) for each individual (User) that you wish to manage using the Subscribed Services. You may, and may authorise each User, to access and use the Platform in accordance with the terms of the Agreement. A Seat, may contain the individual’s personal data as described in the Humaans Data Processing Addendum.
2.2. You may remove an individual’s record from the Platform and replace it with a record for another individual.
2.3. You warrant that you and your Users will keep confidential and not share with any third party password or access details for the Subscribed Services.
2.4. If you exceed the Subscribed Seats or need to add additional Seats beyond the amount agreed in your Sales Agreement, then clause 3 (Additional Seats) will apply.
3 - Additional Seats
3.1. If at any time the number of Seats exceeds the Subscribed Seats:
3.1.1. we will carry out a proration calculation which will determine, based on the amount of time left on the Subscription Period, the prorated charges for the additional Seats added.
3.1.2. we will invoice you the charges for additional Seats on a monthly basis, in arrears. Invoices will be due within 14 days of receipt.
3.1.3. you will pay our invoices in accordance with clause 8.6.2, or we may debit the charges for additional Seats from your bank account, credit card or debit card, using the default method of payment you have provided to us.
4 - Minimum Seats
4.1. During the course of your Subscription Period, you may not reduce the number of Subscribed Seats below the minimum seat floor agreed in the Sales Agreement (Seat Floor).
4.2. Where the total number of Users drops below the Seat Floor, you will continue to be charged based on the Seat Floor. This charge will apply for the remainder of your subscription period.
5 - Trial Period
5.1. We allow a trial period of 14 days for new or prospective users to access certain functionality (at our sole discretion) within the Platform.
5.2. At the end of the Trial Period, you will be prompted to sign up for one of our subscription plans and purchase services from us. If you do not sign up to a plan, you will lose access to our Platform and any of our services at the end of the Trial Period and the Agreement will terminate.
6 - Duration
6.1. The Agreement comes into force on the Effective Date and, unless terminated earlier in accordance with its terms, continues until the later of: (a) the end of the Trial Period; or (b) the end of the Subscription Period (the Term).
6.2. The Effective Date is the date upon which the Agreement comes into effect. This is the earlier of the day the account is created or the Sales Agreement is signed.
6.3. At the end of the Subscription Period, and any renewal thereof, the Subscription Period shall automatically renew on the then current terms (save that we may amend our Fees in accordance with clause 8.7 below), unless you give us at least two month’s prior written notice that you wish to discontinue use of the Subscribed Services at the end of the Subscription Period.
7 - Upgrading Your Plan
7.1. You may during the course of your Subscription Period make a request to upgrade your plan, and in this case the following terms will apply:
7.1.1. you may submit your request to your Humaans point of contact or by emailing email@example.com;
7.1.2. you may purchase an upgrade to your plan. This may be subject to additional fees.
7.1.3. Such fees may be prorated for the remainder of the Subscription Period (or renewal thereof).
7.1.4. we will confirm in writing the number of new additional Seats and/or the upgraded plan, and the corresponding fee. Upon acceptance by you, we will provide you with an invoice for the corresponding fee, which will be payable in accordance with clause 8 (Fees & Payment).
7.2. You may request to downgrade your plan, however this is only applicable at the renewal date and not during the Current Subscription Period.
8 - Fees, payment and renewals
8.1. Unless otherwise stated in a Sales Agreement, Subscription Fees will be invoiced in advance of the upcoming Subscription Period or renewal thereof.
8.2. By entering into this Agreement you are committing to pay our Fees for the Subscription Period, and no refunds will be given if you cancel the Agreement prior to the expiry of the Subscription Period.
8.3. If you do not notify us that you wish to discontinue using the Subscribed Services under clause 6.2, we will invoice you for the renewal Subscription Fees due under the Agreement.
8.4. Invoices for the additional seats that have been accrued over the course of the Current Subscription Period, as described in clause 3, will remain payable in the event a customer does not wish to renew.
8.5. The renewal Subscription Fees shall take into account the then current number of Subscribed Seats.
8.6.1. on the Start Date (and, where appropriate, the renewal thereof) we shall debit the Fees from your bank account, credit card or debit card, as authorised by you under the Sales Agreement; or
8.6.2. following receipt of an invoice, you shall pay the Fees and any other charges expressly agreed between us within 14 days from the date of each invoice. You shall pay the Fees into our bank account via bank transfer per the details included on your invoice.
8.7. On renewal of a Subscription Period, we reserve the right to increase the Subscription Fees for the subsequent Subscription Period.
8.8. The Fees are exclusive of any Tax or VAT imposed in substitution for it and any equivalent or similar tax imposed, which you shall pay at the rate and in the manner prescribed by law.
9 - Multi-year Agreements
9.1. In the event of a multi-year agreement, you will remain liable for incremental charges that arise due to additional Seats as described in clause 3. Customers will be billed monthly for these increments as described in clause 3.
10 - Starting Up Plan
10.1. Humaans currently offers a ‘Starting Up’ plan.
10.2. The Starting Up plan does not include access to the same level of features as our other plans. Customers wishing to upgrade their plan to ‘Growth’ or ‘Enterprise’ may do so based on clause 8.
10.2.1. Unless otherwise specified by us, a Starting Up Plan will be for a monthly rolling Subscription Period; and the Subscription Fees billed in accordance with clause 8.
10.2.2. The Starting Up Plan also does not include access to the Data Migration and Implementation support offered under the Growth and Enterprise Plans, unless explicitly agreed with a member of the sales team. The onboarding process for Starting Up will be managed by the customer.
10.3. Customers wishing to upgrade their plan, can do so by the process described in section 7.
11 - Change Control
11.1. You acknowledge that the Platform and the Subscribed Services are subject to continuous development and that we are entitled to update and/or modify: (a) the features and functionality of the Platform and/or the Subscribed Services; and (b) versions of the Humaans Documentation; (c) the Agreement in order to comply with applicable laws and regulations.
12 - Suspension
12.1. We may suspend access to the Subscribed Services to all or some of the Users if: (a) we reasonably suspect or become aware that there has been misuse of the Subscribed Services that, in our reasonable opinion, threatens the confidentiality, integrity or availability of the Subscribed Services (in which case we will take steps to investigate the issue and may restore or continue to suspend access at our reasonable discretion); or (b) you fail to pay any sums due to us by the due date for payment provided that we have given you written notice of the overdue payment and payment remains overdue 10 Business Days after receipt of such notice (we will restore access to the Subscribed Services promptly on payment).
13 - Customer Data
13.1. You are responsible for:
13.1.1. ensuring the accuracy, quality, integrity and legality of the Customer Data as provided to us;
13.1.2. ensuring that Customer Data are uploaded lawfully and in compliance with any third party licence requirements;
13.1.3. checking that the Customer Data are suitable in all respects for such use.
13.2. As between the Customer and Humaans, the Customer will remain the owner and controller of all Customer Data.
13.3. We may from time to time use customer logos for marketing purposes. If you wish for us not to use your logo for marketing purposes please opt out by sending an email to firstname.lastname@example.org.
14 - Warranties
14.1. Subject to the remainder of this clause 14, we warrant that:
14.1.1. We will comply with any applicable law in providing the Subscribed Services;
14.1.2. subject to your compliance with your obligations in the Agreement, your use of the Subscribed Services in accordance with the terms of the Agreement will not infringe the Intellectual Property Rights of any third party;
14.1.3. the Subscribed Services shall operate materially in accordance with their description in the Agreement and the Humaans Documentation when used in accordance with the Agreement under normal use and normal circumstances during the Term; and
14.1.4. we will provide the Subscribed Services with reasonable care and skill.
14.2. Other than as set out in this clause 14, and subject to clause 20 (Limitation of Liability), the Subscribed Services are provided 'as is' and without warranty, whether express or implied, to the maximum extent permitted by law. You accept that the Subscribed Services may be subject to delays, interruptions, errors or other problems. You acknowledge that such risks are inherent in the nature of the Subscribed Services and that we will have no liability for any such delays, interruptions, errors or other problems.
14.3. The warranties in clause 14.1 are subject to the limitations set out in clause 20 (Limitation of liability) and shall not apply to the extent that any error in the Subscribed Services arises as a result of: (a) incorrect operation or use of the Subscribed Services; (b) use of any Subscribed Services with other software or services or on equipment with which it is incompatible; (c) any unapproved modification of the Subscribed Services; or (d) material breach of the Agreement by you (or by any Affiliate or User).
14.4. You acknowledge that we accept no liability or obligation that: (a) the Subscribed Services will meet your particular needs, whether or not such needs have been communicated to us; (b) the operation of the Subscribed Services will be free of minor errors or defects; or (c) the Subscribed Services will be compatible with any other software or service or with any hardware or equipment except to the extent expressly referred to as compatible in the Agreement and Humaans Documentation.
15 - Intellectual Property
15.1. Intellectual Property Rights means any and all copyright, rights in inventions, patents, know-how, trade secrets, trade-marks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, domain names and all similar rights and, in each case: (a) whether registered or not; (b) including any applications to protect or register such rights; (c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and (e) wherever existing.
15.2. Except as permitted by law, you shall not (and shall not attempt to): (a) reverse engineer or decompile the Platform; (b) modify the Platform; (c) use the Platform for developing competing products; (d) resell the Subscribed Services (except you may re-charge your Affiliates); or (e) circumvent any provisions in this Agreement regarding restricting use to Users.
15.3. All Intellectual Property Rights in and to the Subscribed Services (including in the Platform, the Humaans Documentation and any other materials provided by or on behalf of us in connection with the Subscribed Services) belong to and will remain vested in us. You shall execute all such documents and do such things as we may reasonably consider necessary to give effect to this clause 15.3.
15.4. You grant us a royalty-free, non-transferable, non-exclusive licence during the Term to use the Customer Data (including making copies) and connect to and access the hardware, software and internet connectivity used by you to access the Subscribed Services, only to the extent necessary for us to perform or provide the Subscribed Services.
15.5. To the extent applicable, you hereby assign (and undertake to procure the future assignment) to us of all Intellectual Property Rights in any feedback and suggestions you give to us for improvement of the Platform or the Subscribed Services, with full title guarantee (including by way of present assignment of future Intellectual Property Rights). This is in return for the benefit of updates and modifications we may make (solely at our discretion) to the Platform and Subscribed Services in response to such feedback from you or any of our other customers, which will be intended to improve your experience of using the Platform and Subscribed Services.
15.6. Except for the rights expressly granted in the Agreement, no Intellectual Property Rights of either party are transferred or licensed as a result of the Agreement.
15.7. This clause 15 will survive the termination or expiry of the Agreement.
16 - Indemnities
16.1. We shall defend, indemnify and hold harmless you from and against all claims, losses, damages, fines, expenses and liability (including court costs and reasonable legal costs) resulting from: (a) any claim by a third party that the Platform or Subscribed Services or the use of either infringes the Intellectual Property Rights of that third party; or (b) our breach of Data Protection Legislation in relation to this Agreement.
16.2. You shall defend and indemnify, and hold us harmless from and against all claims, losses, damages, fines, expenses and liability (including court costs and reasonable legal costs) resulting from: (a) any claim by a third party that Customer Data breach the requirements of clause 13; or (b) your breach of Data Protection Legislation in relation this Agreement.
16.3. The provisions of clauses 16.1 and 16.2 will not apply unless the indemnified party: (a) promptly (and in any event within five Business Days) notifies the indemnifying party of any actual or threatened claim; (b) makes no comment or admission and takes no action that may adversely affect the indemnifying party's ability to defend or settle the claim; (c) provides all assistance reasonably required by the indemnifying party; and (d) gives the indemnifying party sole authority to defend or settle the claim.
16.4. We will have no liability under clause 16.1, in respect of any claim which arises in whole or in part from: (a) any modification of the Platform or Subscribed Services without our express written approval; (b) Customer Data; (c) use of the Subscribed Services (or any part) by you otherwise than in accordance with the Permitted Purpose and the Agreement.
17 - Confidential Information
17.1. Confidential Information means all data or information of a confidential nature (regardless of whether it is marked as such) and in whatever form which is directly or indirectly disclosed by one party to the other party (including, in each case, the parties’ respective personnel).
17.2. Each party shall, and shall procure that its Affiliates, Users and professional advisers shall, keep the other party’s Confidential Information secret and confidential and shall not:
17.2.1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement; or
17.2.2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 17.
17.2.3. A party may disclose the other party’s Confidential Information only to those of its, or its Affiliates’, personnel to whom, and to the extent to which, such disclosure is necessary for the purposes contemplated under the Agreement or as otherwise reasonably necessary for the provision or receipt of the Subscribed Services (and such personnel will be bound by confidentiality obligations no less stringent than the confidentiality provisions of the Agreement); and
17.2.4. shall be responsible to the other for any acts or omissions of its personnel in respect of the confidentiality of Confidential Information as if they were its own.
17.3. The provisions of this clause 17 do not apply to information which:
17.3.1. is permitted to be disclosed under the terms of the Agreement;
17.3.2. is or comes into the public domain otherwise than as a result of a breach of these confidentiality provisions;
17.3.3. is lawfully in the possession of the receiving party prior to its disclosure to that party by the disclosing party and is or becomes free from any restriction on its subsequent disclosure or use by the receiving party;
17.3.4. was received by a party from a third party free of any obligation of confidence at the time of its disclosure and is not knowingly used or disclosed in breach of these confidentiality provisions;
17.3.5. was independently acquired or developed by a party as the result of work carried out by any of that party’s personnel to whom no disclosure of such information had been made;
17.3.6. is required by law, by court or governmental or regulatory order of a competent jurisdiction or the rules of any stock exchange or by any regulatory or administrative body, whether or not having the force of law (but, if not having the force of law, compliance with which is in accordance with the general practice of persons subject thereto) to be disclosed provided that the receiving party, where possible, notifies the disclosing party at the earliest opportunity before making any disclosure; or
17.3.7. necessary to be disclosed to a party’s professional advisers in which case that party shall use all reasonable endeavours to procure that such advisers keep such information confidential on terms equivalent to these confidentiality provisions, provided that the receiving party shall ensure that any third party to whom it discloses the disclosing party’s Confidential Information in accordance with this clause 17.3 maintains the confidentiality of the Confidential Information.
17.4. The receiving party shall give the disclosing party notice of any unauthorised use, disclosure, theft or loss of the disclosing party’s Confidential Information promptly upon becoming aware of the same.
17.5. Subject to clause 18 (Data protection), to the extent any of your Confidential Information comprises personal data, we shall ensure that such Confidential Information may be disclosed or used only to the extent such disclosure or use does not conflict with any of our obligations under the Humaans Data Processing Addendum.
17.6. Each party acknowledges that damages may not be an adequate remedy for any breach by a party of these confidentiality provisions and the other party may be entitled (without prejudice to its other rights and remedies) to the equitable remedies of injunction and specific performance.
17.7. This clause 17 will survive the termination or expiry of the Agreement.
18 - Data Protection
18.1. Each party shall comply with all applicable laws and regulations relating to privacy, the privacy of electronic communications and the processing of personal data including: (a) in the European Union, Regulation (EU) 2016/679 (commonly known as the General Data Protection Regulation or GDPR); and (b) in the United Kingdom, the Data Protection Act 2018 and the GDPR as it forms part of domestic law by virtue of section 3 of the European Union (Withdrawal) Act 2018 (commonly known as the UK GDPR).
18.2. To the extent that we process any personal data on your behalf, as a processor or sub-processor, as a result of hosting the Customer Data or otherwise as a result of your use of the Subscribed Services, we shall do so in accordance with the Data Processing Addendum, as updated from time to time.
19 - Limitation of Liability
19.1. Subject to any liability that cannot lawfully be excluded, neither party will be liable for any loss of profit, loss of business, loss of goodwill, loss of savings, loss of data (except, in the case of Humaans, loss of Customer Personal Data (as defined in the Data Processing Addendum) as a result of any breach by us of our obligations under clause 18 (Data protection)), claims by third parties, loss of anticipated savings, whether direct or indirect, or for any indirect loss or consequential loss whatsoever and howsoever caused (even if caused by that party's negligence and/or breach of contract and even if that party was advised that such loss would probably result).
19.2. Subject to clause 20.1, each party’s total aggregate liability to the other party in respect of the Subscribed Services (howsoever arising under or in connection with the Agreement) will not exceed 200% of the fees paid in the previous 10-month period to the event giving raise to the claim.
19.3. The obligations and liabilities of the parties incurred prior to the termination date shall survive the termination of this agreement for all purposes.
20 - Termination
20.1. Either party may terminate the Agreement immediately at any time by giving notice in writing to the other party if:
20.1.1. (to the extent permitted by law) the other party is subject to an insolvency event which shall mean, in relation to an entity; (a) that it is unable or admits inability to pay its debts as they fall due; (b) that the value of its assets is less than its liabilities (taking into account contingent and prospective liabilities); or (c) the appointment of a liquidator, administrator or other insolvency or similar officer in respect of it or its assets or any analogous procedure or step is taken in any jurisdiction;
20.1.2. the other party commits a material breach of the Agreement and such breach is not remediable;
20.1.3. the other party has failed to pay any amount due under the Agreement on the due date and such amount remains unpaid within 30 Business Days after the other party has received written notification that the payment is overdue.
20.2. Termination or expiry of the Agreement will not affect any accrued rights and liabilities of either party at any time up to the date of termination or expiry and will not affect any provision of the Agreement that is expressly or by implication intended to continue beyond termination.
20.3. On termination or expiry of the Agreement:
20.3.1. the rights granted by us under the Agreement will terminate and you shall (and shall procure that each User and any Affiliate will) stop using the Subscribed Services and the Platform;
20.3.2. without affecting our obligation to delete or return Customer Personal Data on your request under the DPA, we shall, at your direction and discretion as notified to us within 40 Business Days from the expiry or termination of the Agreement, destroy and delete or, if requested by you, return all Customer Data (unless relevant local law to which we are subject requires that certain Customer Data be retained) within 15 Business Days from the date of your notice; and
20.3.3. you shall destroy and delete or, if requested by us, return all Humaans Documentation (unless relevant local law to which you are subject requires that certain Humaans Documentation be retained).
20.4. Clauses 21.2 and 21.3 shall survive termination of the Agreement.
21 - Force Majeure
21.1. Neither party will be in breach of the Agreement nor liable for delay in performing, or non-performance of, any of its obligations under the Agreement if such delay or failure results from events, circumstances or causes beyond its reasonable control. The corresponding obligations of the other party will be relieved or reduced to the same extent and where the relevant corresponding obligation relates to payment of a fixed amount, it shall be apportioned appropriately.
22 - General
22.1. Entire Agreement: Except for any nondisclosure or similar agreements entered into between the parties prior to the Effective Date (the terms of which do not provide for automatic termination as a consequence of the parties entering into the Agreement), the Agreement constitutes the entire agreement between the parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.
22.2. Notices: Notices and other communications under this Agreement shall be sent by email to: (a) in the case of those to us, to Humaans Software UK Ltd by email to email@example.com; and (b) in the case of notices to you, to the email and/or physical address or contact details specified in the Sales Agreement.
22.3. Variations: No variation of the Agreement (including a Sales Agreement) shall be valid or effective unless it is: (a) an update made in accordance with the Agreement; or (b) made in writing and refers to the Agreement and is duly executed by, or on behalf of, each party.
22.4. Assignment: Except as expressly approved by the other party, neither party shall assign, subcontract or deal in any other manner with any or all of its rights or obligations under the Agreement.
22.5. No Joint Venture etc: The Agreement does not establish any joint venture, partnership, trust, fiduciary or other relationship between the parties, other than the contractual relationship expressly provided for in it.
22.6. Severance: If any provision of the Agreement (or part of any provision) is or becomes illegal, invalid or unenforceable, the legality, validity and enforceability of any other provision of the Agreement shall not be affected.
22.7. No Waiver: No failure, delay or omission by either party in exercising any right, power or remedy provided by law or under the Agreement shall operate as a waiver of that right, power or remedy, nor shall it preclude or restrict any future exercise of that or any other right, power or remedy.
22.8. Third Party Rights: Subject to clauses 1.3, 1.7 and 2.4 in relation to Affiliates, a person who is not a party to the Agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its provisions.
22.9. Governing Law: The Agreement and any dispute or claim arising out of, or in connection with it, its subject matter or formation (including non-contractual disputes or claims) will be governed by, and construed in accordance with, the laws of England and Wales.
Schedule 1 - Additional Definitions and Interpretation
In the Agreement, unless otherwise stated:
- words in the singular include the plural and vice versa;
- any words that follow 'include', 'includes', 'including', 'in particular' or any similar words and expressions shall be construed as illustrative only and shall not limit the sense of any word, phrase, term, definition or description preceding those words;
- a reference to 'writing' or 'written' includes any method of reproducing words in a legible and non-transitory form (including email);
- a reference in these Terms: (a) to a clause, is to a clause in these Terms; and (b) to a schedule or paragraph in a schedule, is to a schedule or paragraph in a schedule to these Terms, in each case unless provided otherwise;
- a reference to specific legislation is a reference to that legislation as amended, extended, re-enacted or consolidated from time to time and a reference to legislation includes all subordinate legislation made as at the date of the Agreement under that legislation; and
- a reference to any English action, remedy, method of judicial proceeding, court, official, legal document, legal status, legal doctrine, legal concept or thing shall, in respect of any jurisdiction other than England, be deemed to include a reference to that which most nearly approximates to the English equivalent in that jurisdiction.
The following words and expressions have the following meanings:
- Affiliate: any entity that directly or indirectly Controls, is Controlled by, or is under common Control with the Customer [from time to time OR at the date of this agreement]. Where Control means the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company, and controls, controlled and the expression change of control shall be interpreted accordingly.
- Customer, you, your: The customer identified in the Sales Agreement.
- Humaans, we, us, our: Humaans Software UK Ltd
- Sales Agreement: the key commercial terms of the Agreement as set out in a separate document executed by you and us via HubSpot or other similar platform.
- Subscribed Seats: A user account that you create and grant access to each user within your organisation.
- Subscription Fees: The price you will pay as a part of your subscription. These prices will be set out in the Sales Agreement.
- Subscription Period: The time under which you are using the Subscribed Services. This will run from the Effective Date until the termination of the agreement.
If there is any conflict between any terms contained in a Sales Agreement and these Terms, the terms contained in the relevant Sales Agreement will prevail.