// Get ready for April 2020

Free IR35 Software Demonstration

0345 548 3680
enquiries@emtax.co.uk

Home / IR35 Software Licence

IR35 Software Licence


Emtax Terms and Conditions (Relating to the provision of IR35 Software Services)

The Service Provider provides, access to the Applications described herein in its capacity as an
Application Service Provider reseller on the following terms and conditions. They are contractually
binding once accepted and confirmed in writing as provided for in the Sales Order Form.
These Terms and Conditions apply to all dealing’s in relation to the provision of the Services.

DEFINITIONS AND INTERPRETATION

1.1 In these Terms and Conditions:
“Account” means an account enabling a person to access and use the IR35 Software Services on the Platform;
“Agreement” means a contract made under these Terms and Conditions between the Service Provider and the Customer including all Schedules and the Services Order Form;
“API” means any application programming interface for the IR35 Software Services made available by Service Provider to the Customer;
“Application/s” means the IR35 Software Services on the Platform;
“Assessment Credits” means credits purchased by the Customer from the Service Provider that may be used by the Customer to purchase IR35 Assessments;
“Business Day” means any weekday other than a bank or public holiday in England;
“Business Hours” means the hours of 09:00 to 17:00 GMT/BST on a Business Day;
“Charges” means those charges specified in Clause 9.1;
“Confidential Information” means the Service Provider Confidential Information including but not limited to all business, technical, financial or other information created or exchanged between the Parties throughout the Term of this Agreement including information about charges under the Agreement not set out in the Rate Card;
“Customer” means the person or entity identified as such in this Agreement and/or in the Services Order Form;
“Customer Confidential Information” means any information disclosed by the Customer to the Service Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been reasonably understood by the Service Provider to be confidential;
“Customer Contractor” means an individual who completes an IR35 Assessment for the Customer, together with (where the context permits) that individual’s personal services company;
“Customer Data” means all data, works and materials uploaded to or stored on the Platform: by the Customer; or by any Customer Contractor in the course of an IR35 Assessment;
“Customer Personal Data” means any Personal Data that is processed by the Service Provider and/or IR35.IO on behalf of the Customer in relation to the Agreement;
“Data Protection Laws” means all applicable laws relating to the processing of Personal Data including, while they are in force and applicable to Customer Personal Data, the UK’s Data Protection Act 2018 and the General Data Protection Regulation (Regulation (EU) 2016/679);
“Effective Date” means:
the date when both the parties execute and date a custom hard copy or digital Services Order Form which then becomes contractually binding under the Terms and Conditions;
“Emtax Ltd” means the Service Provider being a company incorporated in England & Wales under company number 08280312 and whose registered office address is at Centre Building, Carrington Business Park, Manchester Road, Manchester M31 4DD and “Service Provider” means Emtax Ltd.
“Force Majeure Event” means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);
“Free Subscription Package” means any Subscription Package that does not incur periodic subscription Charges;
“IR35 Assessment” means an IR35 status assessment of a Customer Contractor performed using the IR35 Software Services;
“IR35 Legislation” means the Chapter 8 (Intermediaries Legislation) and Chapter 10 (Off-Payroll Working Rules) of the Income Tax (Earnings and Pensions) Act 2003;
“IR35.IO” means Troop Creative Development Limited trading as IR35.IO a company registered in England and Wales. Our company registration number is 10907313, registered office is at Troop, PO BOX 1257, Sandhurst, England, GU47 7GE;
“IR35.IO Confidential Information” means any information disclosed by the Service Provider or IR35.IO to the Customer during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure was marked as “confidential” or should have been reasonably understood by the Customer to be confidential, including information about Charges under the Agreement that is not set out in the Rate Card;
“IR35 Software Services” means the hosted software-based services provided by IR35.IO under the brand IR35 Software for Business, which will be made available by IR35.IO to the Customer at the direction of the Service Provider as reseller as a service via the internet in accordance with these Terms and Conditions;
“IR35 Software Website” means the website accessible at https://www.IR35.iooftware.co.uk and any successor website designated by IR35.IO;
“Initial Term” has a meaning given in Clause 2.2;
“Intellectual Property Rights” means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these “intellectual property rights” include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);
“Member Contractor” means a Customer Contractor that is independently subscribed to IR35.IO’s IR35 Software for Contractors service;
“Paid Subscription Package” means any Subscription Package that incurs periodic Charges;
“Personal Data” has the meaning given to it in the Data Protection Laws applicable in the United Kingdom from time to time;
“Platform” means the platform managed by IR35.IO and used by IR35.IO to provide the IR35 Software Services, including the application and database software for the IR35 Software Services, the system and server software used to provide the IR35 Software Services, and the computer hardware on which that application, database, system and server software is installed;
“Rate Card” means the Charges payable for the Services set out in Schedule 1 subject to variation in accordance with the Agreement;
“Renewal Term” has a meaning given in Clause 2.2;
“Security Policy” means the IR35 Software: Data and Encryption Policies document produced and maintained by IR35.IO (as it may be amended by IR35.IO from time to time);
“Services” means any services that IR35.IO provides to the Customer, at the direction of the Service Provider as reseller or that the Service Provider has an obligation to provide to the Customer, under these Terms and Conditions, including the IR35 Software Services;
“Services Order Form” means: (a) a custom hard copy or digital order form produced by the Service Provide in the form attached at Schedule 2 below and provided to the Customer and that has been executed and dated by both parties;
“Start Date” means the date specified as such on the Services Order Form;
“Status Determination Statement” means a report generated by the IR35 Software Services setting out the results of an IR35 Assessment;
“Subscription Package” means a particular licence or package of IR35 Software Services, being either a Paid Subscription Package or a Free Subscription Package purchased from the Service Provider under the Terms and Conditions of this Contract;
“Subscription Package Specification” means the Package Pricing Comparison provided to the Customer by the Service Provider as it may be amended from time to time;
“Support Services” means:
(a) assistance in relation to the configuration of the Customer’s settings for the IR35 Software Services; and
(b) support in relation to the identification and resolution of technical errors in the IR35 Software Services,
but shall not include the provision of training services or legal or tax advice;
“Supported Web Browser” means the current release from time to time of the desktop versions of Microsoft Edge, Microsoft Internet Explorer, Mozilla Firefox, Google Chrome or Apple Safari;
“Term” means the term of the Agreement, commencing in accordance with Clause 2.1 and ending in accordance with Clause 2.2; and
“Terms and Conditions” means all the documentation containing the provisions of the Agreement, namely the main body of these Terms and Conditions, all Schedules the Rate Card and the Services Order Form, including any amendments to that documentation from time to time. These Terms and Conditions will apply to all dealings between the parties save where expressly amended in writing by the Sales Provider and notified to the Customer.
1.2 Unless the context otherwise requires, each reference in this Agreement to:
1.2.1 “writing”, and any cognate expression, includes a reference to any communication effected by electronic or facsimile transmission or similar means;
1.2.2 the “Agreement” is a reference to the contract between the parties arising on the Effective Date made on the Terms and Conditions and each of the Schedules as amended or supplemented at the relevant time;
1.2.3 a Schedule is a schedule to this Agreement; and
1.2.4 a Clause, sub-Clause or paragraph is a reference to a Clause of this Agreement (other than the Schedules) or a paragraph of the relevant Schedule.
1.2.5 The headings used in this Agreement are for convenience only and shall have no effect upon the interpretation of this Agreement.
1.2.6 Words imparting the singular number shall include the plural and vice versa.
1.2.7 References to any gender shall include the other gender.

2. Term

2.2 The Agreement shall come into force on the Effective Date.
2.2 The Agreement shall continue in force from the Effective Date until the end of the period of 12 months following the Start Date (or such longer period as may be specified in the Services Order Form) (“Initial Term”); and thereafter it shall continue in force for successive 12-month periods (“Renewal Terms”), subject to termination in accordance with Clause 18 or any other provision of these Terms and Conditions.
2.3 Unless the parties expressly agree otherwise in writing, each Services Order Form shall create a distinct contract governed by and under these Terms and Conditions as if set out therein in full.

3 Service Provider Services

3.1 the Service Provider hereby grants to the Customer or shall procure the grant of:
(a) a non-exclusive licence to use the IR35 Software Services by means of a Supported Web Browser in connection with IR35 Assessments during the Term; and
(b) the right to supply copies of Status Determination Statements to Customer Contractors and others permitted by this Agreement, in accordance with the Data Protection Laws and other applicable laws, subject to payment and, subject to the other terms of the Agreement.
3.2 In so far as the Service Provider is permitted to do so the Service Provider may at its discretion also grant or procure from IR35.IO to the Customer a non-exclusive licence to use the IR35 Software Services by means of the API in connection with IR35 Assessments during the Term but shall have no obligation to do so. Use of the API shall be subject to such limitations, restrictions and prohibitions as the Service Provider or IR35.IO may specify when granting access to the API or as the parties may agree in writing from time to time.
3.3 The licences granted to the Customer under Clause 3.1 are subject to the following limitations:
(a) the IR35 Software Services may only be used by: (i) the Customer’s employees, agents and contractors acting on behalf of the Customer; and (ii) the Customer Contractors (but in this case only for the purposes of completing IR35 Assessments); and
(b) the IR35 Software Services must not be used at any point in time by more than a number of persons corresponding to the number of Accounts purchased by the Customer (excluding Customer Contractors).
3.4 Except to the extent expressly permitted in these Terms and Conditions or required by law on a non-excludable basis, the licences granted by the Service Provider or IR35.IO to the Customer under Clause 3.1 and Cause 3.2 are subject to the following prohibitions:
(a) the Customer must not license or sub-license its right to access and use the IR35 Software Services, or sell, resell, distribute, rent, lease or lend the IR35 Software Services;
(b) the Customer must not permit any unauthorised person to access or use the IR35 Software Services;
© the Customer must not republish or redistribute any content or material from the IR35 Software Services (excluding Status Determination Statements, which may be redistributed in accordance with Clause 3.1);
(d) the Customer must not make any alteration to the Platform;
(e) the Customer must not conduct or request that any other person conduct any load testing or penetration testing on the Platform or IR35 Software Services;
(f) the Customer must not use the IR35 Software Services to store or transmit any malicious code, malware, attack, bugs, viruses, Trojans or similar;
(g) the Customer must not use the IR35 Software Services in any way that causes, or may cause, damage to the IR35 Software Services or Platform or impairment of the availability, integrity, performance or accessibility of the IR35 Software Services (including making an unreasonable number of requests to the Service Provider or IR35 Software Services or otherwise placing an unreasonable load upon the Service Provider or IR35 Software Services);
(h) the Customer must not attempt to gain unauthorised access to the Service Provider or IR35 Software Services, the Platform or its or their related systems or networks;
(i) the Customer must not copy the IR35 Software Services or any part, feature, function or user interface thereof;
(j) the Customer must not access or use the Service Provider or IR35 Software Services to provide a product or service that is in any way competitive with Service Providers services or the IR35 Software Services (providing that the Customer may supply Status Determination Statements to Customer Contractors and others in accordance with these Terms and Conditions alongside its own nonautomated IR35 Legislation-related services);
(k) the Customer must not reverse engineer, decompile, manipulate or access any source code or object code related to the IR35 Software Services, or use any machine learning or artificial intelligence system in relation to the output of the IR35 Software Services; and
(l) the Customer must not use the IR35 Software Services in any way that is unlawful, illegal, fraudulent or harmful or in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
3.5 The features of the IR35 Software Services shall be as specified in the applicable Subscription Package Specification as at the Effective Date, providing that the Service Provider or IR35.IO may at any time:
(a) add additional features to the Customer’s Subscription Package, and remove such additional features after they have been added;
(b) alter, remove or replace any features of the Customer’s Subscription Package that are not specifically identified in the Subscription Package Specification; and
© alter the way in which those features that are specifically identified in the Subscription Package Specification work.
3.6 The Customer shall use reasonable endeavours, including reasonable security measures relating to Account access details, to ensure that no unauthorised person may gain access to the IR35 Software Services using an Account.
3.7 The Service Provider will use reasonable endeavours to procure that IR35.IO shall use reasonable endeavours to maintain the availability of the IR35 Software Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the IR35 Software Services but does not guarantee 100% availability.
3.8 The Customer acknowledges that from time to time IR35.IO may perform maintenance on the Platform, which may affect the availability and/or performance of the IR35 Software Services. Maintenance resulting in downtime is likely to be infrequent and will wherever practicable, be performed outside Business Hours; and the Service Provider or IR35.IO shall where practicable give to the Customer at least 24 hours’ prior written notice of such downtime.
3.9 Without prejudice to Clause 3.7 or Clause 3.8, downtime caused directly or indirectly by any of the following shall not constitute a breach of the Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications network;
© a fault or failure of IR35.IO’s hosting infrastructure services provider, unless such fault or failure constitutes an actionable breach of the contract between IR35.IO and that company;
(d) a fault or failure of the Customer’s computer systems or networks or internet connection;
(e) any breach by the Customer of the Agreement; or
(f) scheduled or emergency maintenance.

4. Support Services

4.1 If the Customer has a Paid Subscription Package, then the Service Provider shall provide or procure from IR35.IO the Support Services to the Customer during the Term with reasonable skill and care.
4.2 If the Customer has a Free Subscription Package, the Service Provider has no obligation to provide Support Services to the Customer.
4.3 The Service Provider will provide or procure Support Services remotely at its discretion via an email-based or online ticket support system.
4.4 The Customer must use the support system only for the purposes of requesting and, where applicable, receiving the Support Services; and the Customer must not use the support system for any other purpose.
4.5 The Service Provider will use reasonable endeavours to respond to tickets raised by the Customer within such time periods as are specified or agreed by the Service Provider in writing from time to time.
4.6 Save to the extent expressly provided otherwise in the Agreement, the Service Provider gives no guarantees, warranties or representations to the Customer in relation to the provision of the Support Services or any outcomes of the Support Services.
4.7 The Service Provider shall have no obligation to provide Support Services in respect of any issue caused by the improper use of the Services by the Customer or in respect of any issue that the Customer may reasonably be expected to resolve without assistance.

5. Customisations

5.1 The Customer may at any time request that the Service Provider procures that IR35.IO creates a Customisation; and the Service Provider may agree to do so or refuse to do so at its sole discretion.
5.2 The Service Provider’s agreement to create a Customisation may be subject to the Customer paying Charges with respect to that work.
5.3 The Customer acknowledges that it will not acquire ownership of any Intellectual Property Rights in any Customisations and all Intellectual Property Rights in the Customisations shall be the exclusive property of IR35.IO.
5.4 From the time and date when the Customisation is first delivered or made available by IR35.IO to the Customer, the Customisation shall form part of the IR35 Software Services, and accordingly from that time and date it shall be subject to these Terms and Conditions.
5.5 The Customer acknowledges that the Service Provider and IR35.IO may make any Customisation available to any of its other customers or any other third party.

6. Customer obligations

6.1 For the duration of this Agreement to deal exclusively with the Service Provider or at its direction as reseller IR35.IO or other IR35.IO nominated/authorised service providers in relation to the Services and not to use services of a similar or competing nature from any other source or provider.
6.2 The Customer shall be solely responsible for familiarising itself with the functionality of the IR35 Software Services, for ensuring that the IR35 Software Services meet the Customer’s requirements, and for its use of the IR35 Software Services and their features, including completing IR35 Assessments.
6.3 Save to the extent that the parties have agreed otherwise in writing, the Customer must provide such:
(a) co-operation, support and advice; and
(b) information and documentation,
as are reasonably necessary to enable the Service Provider to perform its obligations under the Agreement both direct and through IR35.IO as appropriate.
6.4 The Customer must ensure that the information supplied by the Customer to the Service Provider for inclusion in the Services Order Form, or included in the Services Order Form by the Customer, is complete and accurate.
6.5 The Customer must not change, adapt or edit any Status Determination Statement or create any derivative work using any Status Determination Statement. Without prejudice to the generality of the foregoing, the Customer must not remove or obscure any Service Provider or other IR35.IO branding or logos on any Status Determination Statement.
6.6 The Customer must not act in any way to bring the Service Provider or IR35.IO into disrepute.

7. Customer Data

7.1 The Customer shall be responsible for the accuracy, quality and legality of the Customer Data and the means by which the Customer acquires the Customer Data and (without prejudice to the generality of the foregoing) the Customer warrants that it is compliant with the General Data Protection Regulations, the Data Protection Act 2018 and the Privacy & Electronic Communications Regulations 2019 and hereby indemnifies the Service Provider from all or any claims, actions, fines, costs incurred by the Service Provider resulting from any breach by the Customer howsoever arising.
7.2 The Customer hereby grants to the Service Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Service Provider’s obligations and the exercise of the Service Provider’s rights under the Agreement. The Licence extends to IR35.IO as required to enable the provision of th Services. The Customer also grants to the Service Provider the right to sub-license these rights to its hosting, connectivity and telecommunications service providers, and those of IR35.IO where applicable subject to any express restrictions elsewhere in the Agreement.
7.3 The Customer warrants to the Service Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law and hereby indemnifies the Service Provider from all or any claims, actions, fines, costs incurred by the Service Provider resulting from any breach or infringement howsoever arising.
7.4 The Customer shall notify the Service Provider immediately on becoming aware of any breach of the Agreement with respect to the IR35 Software Services or the Customer Data and shall provide to the Service Provider all such support and assistance in relation to the breach as the Service Provider may request.
7.5 The Service Provider shall comply with the Security Policy in relation to the handling of Customer Data by the Service Provider.

8. Intellectual Property Rights

8.1 Nothing in these Terms and Conditions shall operate to assign or transfer any Intellectual Property Rights from the Service Provider or IR35.IO to the Customer, or vice versa.
8.2 The Customer acknowledges that all Intellectual Property Rights (excluding the Intellectual Property Rights in the Customer Data) created by or on behalf of the Customer and arising out of or in connection with the Services, whether or not such Services were requested by the Customer, shall be owned by the Service Provider or IR35.IO as applicable but in all events not the Customer.
8.3 Except as expressly stated in the Agreement, the Agreement does not grant the Customer any rights to, under or in any Intellectual Property Rights in or arising out of or in connection with the Services.

9. Charges, Assessment Credits, Accounts and Subscription Packages

9.1 The Charges due to be paid by the Customer to the Service Provider under the Agreement are as follows:
(a) the periodic subscription fee specified in the Rate Card in relation to the applicable Subscription Package;
(b) amounts incurred by the Customer in purchasing Assessment Credits subscriptions, bolt-on packages of Assessment Credits and additional Accounts as specified in the Rate Card;
© any other amounts which are due from the Customer to the Service Provider under these Terms and Conditions; and
(d) such amounts as may be agreed in writing by the parties from time to time, in each case subject to variations in accordance with the Agreement.
9.2 To begin an IR35 Assessment, the Customer must have one or more Assessment Credits; and on the completion of an IR35 Assessments, the Service Provider will deduct an Assessment Credit from the Customer’s Assessment Credit balance. The Customer may purchase Assessment Credits, on either a subscription or a bolt-on basis, at the rate specified in the Rate Card. Assessment Credits shall not expire and unused Assessment Credits shall be carried forward from the Initial Term or a Renewal Term to the following Renewal Term. However, all accrued Assessment Credits shall be lost upon the date of effective termination of the Agreement. In no circumstances may Assessment Credits be exchanged for cash.
9.3 The number of Accounts included in each Subscription Package is set out in the applicable Subscription Package Specification. The Customer may purchase additional Accounts for the additional price set out in the Rate Card.
9.4 If the Customer wishes to change from one Subscription Package to another, the Customer may do so, on and from the end of a month, by giving to the Service Provider at least 7 days’ prior written notice of the change. However:
(a) the Customer acknowledges that in the case of a Subscription Package downgrade, the Customer will lose access to some features of the IR35 Software Services, and data associated with those features may be deleted and lost to the Customer; and
(b) the Customer may not change from a Paid Subscription Package to a Free Subscription Package without the prior written consent of the Service Provider (which consent will usually be withheld unless the Customer has less than 10 accrued Assessment Credits).
9.5 All amounts stated in or in relation to these Terms and Conditions are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by the Customer to the Service Provider.
9.6 The Charges are non-refundable.
9.7 The Rate Card and Charges will be reviewed and updated by the Service Provider once per year as follows:
(a) during January each year, the Service Provider will notify the Customer of any changes to the Rate Card and Charges, providing that the Service Provider shall not, when exercising its rights under this Clause 9.7, increase any element of the Charges by an percentage exceeding 5% over the percentage increase, during the previous year, in the Retail Prices Index (all items) published by the UK Office for National Statistics; and
(b) the notified changes will take effect no earlier than the first day of February that same year.
9.8 Without prejudice to its rights under Clause 9.7, the Service Provider may elect to vary the Rate Card or any element of the Charges, upon and from the end of the Initial Term or any Renewal Term, by giving to the Customer not less than 100 days’ prior written notice of variation.

10. Payments

10.1 The Service Provider shall issue VAT invoices to the Customer with respect to the Charges; and the Customer must pay the Charges to the Service Provider in advance of the provision of the Services to which they relate.
10.2 The Charges must be paid in pounds sterling by bank transfer (using such payment details as are notified by the Service Provider to the Customer from time to time).
10.3 If the Customer does not pay any amount properly due to the Service Provider under these Terms and Conditions, the Service Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8% per annum above the Bank of England base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to the Late Payment of Commercial Debts (Interest) Act 1998.
10.4 The Service Provider may suspend the provision of any or all of the Services if any amount due to be paid by the Customer to the Service Provider under the Agreement is overdue, and the Service Provider has given to the Customer at least 14 days’ written notice, following the amount becoming overdue, of its intention to suspend Services on this basis.

11 Confidentiality

11.1 The Service Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person without the Customer’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions save that the Customer consents to the Customer Confidential Information being disclosed to IR35.IO; and
© use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Service Provider IR35.IO uses to protect the Service Provider’s IR35.IO’s own confidential information of a similar nature, being at least a reasonable degree of care.
11.2 The Customer must:
(a) keep the IR35.IO Confidential Information and the Confidential Information strictly confidential;
(b) not disclose the IR35.IO Confidential Information or the Confidential Information to any person without prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms and Conditions ; and
© use the same degree of care to protect the confidentiality of the IR35.IO Confidential Information and the Confidential Information as the Customer uses to protect the Customer’s own confidential information of a similar nature, being at least a reasonable degree of care.
11.3 Notwithstanding Clauses 12.1 and 12.2, a party’s Confidential Information may be disclosed by the other party to that other party’s officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information that is disclosed for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information in such written form as the Service Provider shall first approve such approval not to be unreasonably withheld or delayed.
11.4 No obligations are imposed by this Clause 11 with respect to a party’s Confidential Information if that Confidential Information:
(a) is known to the other party before disclosure under these Terms and Conditions and is not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the other party; or
© is obtained by the other party from a third party in circumstances where the other party has no reason to believe that there has been a breach of an obligation of confidentiality.
11.5 The restrictions in this Clause 11 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of either party on any recognised stock exchange.
11.6 The provisions of this Clause 11 shall continue in force indefinitely following the termination of the Agreement.

12 Data protection

12.1 All personal data (as opposed to business data) that the Service Provider may use will be collected, processed, and held in accordance with the provisions of EU Regulation 2016/679 General Data Protection Regulation (“GDPR”) and the Customer’s rights under the GDPR where they apply. 12.2 For complete details of the Service Provider’s collection, processing, storage, and retention of personal data including, but not limited to, the purpose(s) for which personal data is used, the legal basis or bases for using it, details of the Customer’s rights and how to exercise them, and personal data sharing (where applicable), please refer to the Service Provider’s Privacy Notice available from https://www.emtax.co.uk/privacy-cookie-policy
12.2 Each party shall comply with the Data Protection Laws with respect to the processing of the Customer Personal Data. The Customer warrants to the Service Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Service Provider under or in connection with the Agreement.
12.3 The Customer acknowledges that the Service Provider shall act as a controller, or as a processor or as both on behalf of a relevant third party, with respect to:
(a) names and contact information of Member Contractors; and
(b) copies of Status Determination Statements stored by the Service Provider or IR35.IO exclusively for the purpose of enabling the defence of legal claims against either and/or related persons,
and, accordingly, such Personal Data shall not be subject to Clauses 12.4 to 12.19.
12.4 Subject to Clause 12.13, the Customer shall only supply to the Service Provider and IR35.IO, and the Service Provider shall only process, or procure processing by IR35.io in each case under or in relation to the Agreement:
(a) the Personal Data of Customer Contractors who are not Member Contractors of the following types: names and contact information;
(b) the Personal Data of all Customer Contractors of the following types: IR35 Assessment inputs and Status Determination Statements; and
© the Personal Data of Account users of the following times: names, Account data and contact information, and the Service Provider and/or IR35.IO shall only process this Customer Personal Data for the purposes of providing Services and monitoring of the provision of the Services.
12.5 The Service Provider shall only process the Customer Personal Data during the Term and for not more than 12 months the end of the Term, subject to the other provisions of this Clause 13.
12.6 The Service Provider shall only process the Customer Personal Data on the written instructions of the Customer (including with regard to transfers of the Customer Personal Data to any place outside the United Kingdom and the European Economic Area), as set out in these Terms and Conditions or any other document agreed by the parties in writing.
12.7 The Service Provider shall promptly inform the Customer if, in the opinion of the Service Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
12.8 Notwithstanding any other provision of the Agreement, the Service Provider and/or IR35.IO may process the Customer Personal Data if and to the extent that the Service Provider or IR35.IO is required to do so by applicable law. In such a case, the Service Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information on important grounds of public interest.
12.9 The Service Provider shall ensure that persons authorised to process the Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory obligation of confidentiality.
12.10 The Service Provider shall procure the IR35.IO implementation of, and the Customer shall implement appropriate technical and organisational measures to ensure an appropriate level of security for the Customer Personal Data, including the measures specified in the Security Policy.
12.11 The Service Provider must not engage any third party to process the Customer Personal Data without the prior specific or general written authorisation of the Customer (save that the Customer consents to IR35.IO). In the case of a general written authorisation, the Service Provider shall inform the Customer at least 14 days in advance of any intended changes concerning the addition or replacement of any third party processor, and if the Customer objects to any such changes before their implementation, then the Service Provider shall use reasonable endeavours to take the Customer’s reasonable objections into account. The Service Provider shall ensure that each third-party processor is subject to equivalent legal obligations as those imposed on the Service Provider by this Clause 12.
12.12 As at the Effective Date, the Service Provider as reseller and IR35.IO are hereby authorised by the Customer to engage, as sub-processors with respect to Customer Personal Data, the following third parties and third parties within the following categories: hosting services and hosting infrastructure providers (IR35.IO; Amazon Web Services, or such other proper hosting services and hosting infrastructures as it deems reasonably necessary, to provide these services); support services infrastructure providers; communications services providers; data processing services providers; and consultancy and training services providers.
12.13 The Service Provider shall, insofar as possible and taking into account the nature of the processing, take appropriate technical and organisational measures to assist the Customer with the fulfilment of the Customer’s obligation to respond to requests exercising a data subject’s rights under the Data Protection Laws and the Customer will likewise comply promptly with all requirements of the Service Provider in these regards.
12.14 The Service Provider shall assist the Customer in ensuring compliance with the obligations relating to the security of processing of personal data, the notification of personal data breaches to the supervisory authority, the communication of personal data breaches to the data subject, data protection impact assessments and prior consultation in relation to high-risk processing under the Data Protection Laws and where required the Customer will comply with requests of the Service provider mutatis mutandis. The Service Provider may charge the Customer at its standard time-based charging rates for any work performed by it at the request of the Customer pursuant to this Clause 12.14.
12.15 Where applicable each party must notify the other and the Information Commissioners Office of any Personal Data breach affecting the Customer Personal Data without undue delay and, in any case, not later than 72 hours after becoming aware of the breach.
12.16 The Service Provider shall make available to the Customer all information reasonably necessary to demonstrate its compliance with its obligations under this Clause 12 and the Data Protection Laws. The Service Provider may charge the Customer at its standard time-based charging rates for any work performed by it at the request of the Customer pursuant to this Clause 12.16.
12.17 The Service Provider shall, at the request of the Customer, delete or return all of the Customer Personal Data to the Customer after the provision of services relating to the processing, and shall delete existing copies save to the extent that applicable law requires storage of the relevant Personal Data.
12.18 The Service Provider shall procure that IR35.IO and the Service Provider shall, allow for and contribute to audits, including inspections, conducted by the Customer or another auditor mandated by the Customer in respect of the compliance of the Service Provider and/or IR35.IO’s processing of Customer Personal Data with the Data Protection Laws and this Clause 12. The Service Provider may charge the Customer at its standard time-based charging rates for any work performed by it at the request of the Customer pursuant to this Clause 12.18, including charges from IR35.IO, providing that no such charges shall be levied where the request to perform the work arises out of any breach by the Service Provider of the Agreement or any security breach affecting the systems of IR35.IO or the Service Provider.
12.19 If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under the Agreement, then the parties shall use their best endeavours promptly to agree such variations to the Agreement as may be necessary to remedy such non-compliance.

13. Publicity

13.1 Either party may issue press releases and make other public disclosures relating to the Agreement, subject to Clause 12.
13.2 The Customer grants to the Service Provider a non-exclusive licence during Term to use the Customer’s name, trade marks and branding for the Service Provider’s marketing purposes including for use in case studies, advertising and other marketing collateral.

14 Warranties and indemnity

14.1 The Service Provider warrants to the Customer in relation to each Status Determination Statement that the conclusions set out in the Status Determination Statement will not be obviously and manifestly wrong, based on the inputs into the relevant IR35 Assessment. Such conclusions will be considered to be obviously and manifestly wrong if no reasonable IR35 expert would have reached the same or similar conclusions, based on the inputs into the relevant IR35 Assessment.
14.2 The Customer warrants to the Service Provider that it has the legal right and authority to enter into the Agreement and to perform its obligations under these Terms and Conditions.
14.3 All of the parties’ warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms and Conditions. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
14.4 Except in circumstances where the Service Provider is in breach of the warranty in Clause 14.1, the Customer hereby indemnities the Service Provider and undertakes to keep the Service Provider indemnified against any claims, liabilities, losses, costs and expenses (including legal expenses and amounts paid in settlement of claims) arising directly or indirectly out of the reliance placed by:
(a) the Customer;
(b) any third party customer or business partner of the Customer; or
© any Customer Contractor, on any Status Determination Statement or other output of the Services, including reliance in relation to any decision to engage or not engage any Customer Contractor.

15. Acknowledgements and warranty limitations

15.1 The Customer acknowledges that any legal information or legal commentary provided on the IR35 Software Website or through the Services is provided for information purposes only and is not advice and should not be relied on as legal advice. Neither the Service Provider or IR35.IO will not provide any legal, financial, accountancy or taxation advice under these Terms and Conditions or in relation to the IR35 Software Services; and, except to the extent expressly provided otherwise in these Terms and Conditions, the Service Provider does not warrant or represent that the IR35 Software Services or the use of the IR35 Software Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
15.2 Without prejudice to the generality of Clause 15.1, the Customer acknowledges that IR35 Assessments carried out through the IR35 Software Services may not always accord with assessments carried out by HM Revenue & Customs or any court or tribunal. Human judgements are not 100% predictable, and it is always possible that they may lead to different results than those carried out through the IR35 Software Services. Accordingly the Service Provider gives no warranty or representation that all Status Determination Statements will accord with the decisions and judgments of the tax authorities or the courts and the Customer proceeds at its own risk.
15.3 The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of these Terms and Conditions, the Service Provider gives no warranty or representation that the IR35 Software Services will be wholly free from defects, errors and bugs.
15.4 Whilst the Service Provider shall use reasonable endeavours to procure the IR35 Software Services and the compliance by IR35.IO of the Security Policy in relation to the security of the IR35 Software Services, the Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of these Terms and Conditions, and the Service Provider and does not guarantee that the IR35 Software Services will never be subject to a security breach.
15.5 The Customer acknowledges that the IR35 Software Services are designed to be compatible only with the Supported Web Browsers; and the Service Provider does not warrant or represent that the IR35 Software Services will be compatible with any other software or systems.

16. Limitations and exclusions of liability

16.1 Nothing in these Terms and Conditions will:
(a) limit or exclude any liability for death or personal injury resulting from negligence;
(b) limit or exclude any liability for fraud or fraudulent misrepresentation;
© limit any liabilities in any way that is not permitted under applicable law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16 and elsewhere in these Terms and Conditions:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under these Terms and Conditions or relating to the subject matter of these Terms and Conditions, including liabilities arising in contract, in tort (including negligence) and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms and Conditions.
16.3 Neither the Service Provider or IR35.IO shall be liable to the Customer in respect of any losses arising out of a Force Majeure Event.
16.4 Neither the Service Provider or IR35.IO will be liable to the Customer in respect of any loss of profits or anticipated savings.
16.5 Neither the Service Provider or IR35.IO will be liable to the Customer in respect of any loss of revenue or income.
16.6 Neither the Service Provider or IR35.IO will be liable to the Customer in respect of any loss of use or production.
16.7 Neither the Service Provider or IR35.IO will be liable to the Customer in respect of any loss of business, contracts or opportunities.
16.8 Neither the Service Provider or IR35.IO will be liable to the Customer in respect of any loss or corruption of any data, database or software, providing that this Clause 16.8 does not apply to liabilities under Clause 11 or 12.
16.9 Neither the Service Provider or IR35.IO will be liable to the Customer in respect of any loss of or damage to goodwill or reputation.
16.10 Except in circumstances where the Service Provider is in breach of the warranty in Clause 14.1, the Service Provider will not be liable to the Customer in respect of any tax liabilities (or related losses, damages, costs or expenses) resulting from a decision, judgment, notice or order of HM Revenue & Customs or any court or tribunal that the IR35 Legislation applies or does not apply to a contract which is the subject of an Status Determination Statement; nor will the Service Provider be liable to the Customer in respect of any tax liabilities arising out of any settlement agreement with HM Revenue & Customers.
16.11 The Service Provider will not be liable to the Customer in respect of any loss or damage arising out of legal advice provided by third parties to whom the Service Provider has referred the Customer for advice, or any loss or damage arising out of any reliance placed on any advice or information on the IR35 Software Website or on any website linked from the IR35 Software Website.
16.12 The Service Provider will not be liable to the Customer in respect of any special, indirect or consequential loss or damage.
16.13 The aggregate liability of the Service Provider to the Customer under the Agreement shall not exceed 110% of the fees paid by the Customer to the Service Provider hereunder for the Services during the preceding 12 months or if less than 12 months then for such lesser period.

17. Force Majeure Event

17.1 If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.

18. Termination

18.1 Either party may terminate the Agreement at the end of the Initial Term or any Renewal Term by giving to the other party at least 90 days’ prior written notice of termination.
18.2 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if the other party commits a material breach of these Terms and Conditions.
18.3 Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
(a) the other party: (i) is dissolved; (ii) ceases to conduct all (or substantially all) of its business; (iii) is or becomes unable to pay its debts as they fall due; (iv) is or becomes insolvent or is declared insolvent; or (v) convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
© an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.
18.4 This Agreement shall automatically terminate in the event that the Service Provider ceases to offer the Services from IR35.IO for any reason.

19. Effects of termination

19.1 Upon the termination of the Agreement, all of the provisions of these Terms and Conditions shall cease to have effect, save that the following provisions of these Terms and Conditions shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Clauses 1, 7.2, 10, 11, 12, 14.3, 16, 19, 22 and 23.
19.2 Except to the extent that these Terms and Conditions expressly provides otherwise, the termination of the Agreement shall not affect the accrued rights of either party.
19.3 The Service Provider shall procure that IR35.IO shall comply with the Security Policy in relation to the deletion of Customer Data following termination.
19.4 Within 14 days following the termination of the Agreement for any reason the Customer must pay to the Service Provider all of the Service Provider’s outstanding unpaid invoices and interest; and, in respect of the Services supplied but for which no invoice has been submitted, the Service Provider may submit an invoice, which shall be payable within 7 days following the date of issue of the invoice.

20. Notices

20.1 All notices under this Agreement shall be in writing.
20.2 Notices shall be deemed to have been duly given:
20.3 when delivered, if delivered by courier or other messenger (including registered mail) during normal business hours of the recipient; or
20.4 when sent, if transmitted by fax or e-mail and a successful transmission report or return receipt is generated; or
20.5 on the fifth business day following mailing, by prepaid recorded delivery signed for post;
20.6 In each case notices should be addressed to the most recent address, e-mail address, or facsimile number available through the IR35 Software Services or if none shown then as notified to the other Party.

21. Subcontracting

21.1 The Customer acknowledges that the Service Provider shall subcontract the provision of the IR35 Software Services and other Services to IR35.IO.
21.1 Subject to any express restrictions elsewhere in these Terms and Conditions, the Service Provider may subcontract any other of its obligations under the Agreement.

22. General

22.1 No breach of any provision of the Agreement shall be waived except with the express written consent of the party not in breach.
22.2 If any provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of the Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
22.3 The Service Provider may elect to vary the Agreement, upon and from the end of the Initial Term or any Renewal Term, by giving to the Customer not less than 100 days’ prior written notice of variation. Subject to this and the other provisions of the Agreement, the Agreement may only be varied by a written document signed by or on behalf of each of the parties.
22.4 The Customer hereby agrees that the Service Provider may assign its contractual rights and obligations under the Agreement to any third party. The Customer must not without the prior written consent of the Service Provider assign, transfer or otherwise deal with any of the Customer’s contractual rights or obligations under the Agreement.
22.5 The Agreement is made for the benefit of the parties and is not intended to benefit any third party or be enforceable by any third party save that the Customer agrees that IR35.IO may in its discretion, enforce the provisions of any Clause of the Agreement against the Customer direct wherein the Customer agrees or warrants positively to do or not to do something in respect of IR35.IO. Without prejudice to the generality of the foregoing IR35.IO can take action in respect of a breach by the Customer of its agreement in Clause 6.6. Nothing in this clause derogates from the right of the Service Provider to bring claims on any breach of any part of this Agreement by the Customer. The rights of the parties to terminate, rescind, or agree any amendment, waiver, variation or settlement under or relating to the Agreement are not subject to the consent of any third party.
22.6 Subject to Clause 16.1, the Terms and Conditions shall constitute the entire agreement between the parties in relation to the subject matter of the Agreement, and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter.
22.7 The Agreement shall be governed by and construed in accordance with English law.
22.8 The courts of England shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with the Agreement.

23. Interpretation

23.1 In these Terms and Conditions, a reference to a statute or statutory provision includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory provision.
23.2 The Clause headings do not affect the interpretation of these Terms and Conditions.
23.3 In these Terms and Conditions, general words shall not be given a restrictive interpretation by reason of being preceded or followed by words indicating a particular class of acts, matters or things.
23.4 Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between the Service Provider and the Customer.
23.5 The Parties agree that no failure by either Party to enforce the performance of any provision in this Agreement shall constitute a waiver of the right to subsequently enforce that provision or any other provision of this Agreement. Such failure shall not be deemed to be a waiver of any preceding or subsequent breach and shall not constitute a continuing waiver.

Blog



Keep up to date

Enter your email to keep up to date with our latest employment tax news