1. WHAT THESE TERMS OF SERVICE COVER

Please read these Terms of Service (the “Terms of Service”) fully and carefully before using www.paygaps.com (the “Site”) and the services, features, content (the “Services”) offered by Staffmetrix Limited (the “Supplier”).

These Terms of Service set forth the legally binding terms and conditions for your use of the Site and the Services. If you do not agree to be bound by these Terms of Service, you must not access or use the Site or Services.

By clicking the “Register” or “Login” (or similar) button or box, or registering for or using the Site or Services, you acknowledge that you have read, understood, agree with and accept all of the terms and conditions in these Terms of Service and our Privacy Policy. Please scroll down through these Terms of Service to review important provisions regarding limitation of liability, waivers, indemnities, and other important topics. As used in these Terms of Service, “paygaps.com”, “Staffmetrix”, “we”, “us” and “our” means Staffmetrix Limited.

2. DEFINITIONS

“Customer” means the person or name of organisation that purchases Services from the Supplier.

Gender pay gap reporting service, Consulting Services and Data Management Services. “Applicable Laws” means all applicable laws, statutes and regulations that may be inforce at any point in time that are relevant to the provision of our Site or Services.

“Data Breach” has the meaning given to it in the GDPR.

“Data Controller” a person who (either alone or jointly or in common with other persons) determines the purposes for which and the manner in which any personal data are, or are to be processed.

“Data Processor”, in relation to personal data, means any person (other than an employee of the data controller) who processes the data on behalf of the data controller.

“Data Protection Laws” means (i) until the GDPR is directly applicable in the United Kingdom, the Data Protection Act 1998; (ii) once the GDPR is directly applicable in the United Kingdom, the GDPR and any national implementing laws, regulations and secondary legislation in the United Kingdom relating to the processing of personal data and the privacy of electronic communications, as amended, replaced or updated from time to time; and then (iii) any successor legislation to the GDPR or the Data Protection Act 1998.

“Data Protection Regulator” means the UK Information Commissioner’s Office (including any successor or replacement body). “GDPR” means Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and repealing Directive 95/46/EC (General Data Protection Regulation) OJ L 119/1, 4.5.2016.

“Personal data” has the meaning given to it in the GDPR and for the purposes of this Agreement includes Sensitive Personal Data.

“Processing”, in relation to information or data means obtaining, recording or holding the information or data or carrying out any operation or set of operations on the information or data, including -

  1. organisation, adaptation or alteration of the information or data;
  2. retrieval, consultation or use of the information or data;
  3. disclosure of the information or data by transmission; dissemination or otherwise making available; or
  4. alignment, combination, blocking, erasure or destruction of the information or data. “Service” means the services delivered by Staffmetrix in the form of the paygaps.com “Site” means the website paygaps.com which is owned and managed by Staffmetrix. “Supplier” means Staffmetrix and paygaps.com.

3. ACCEPTANCE OF TERMS OF SERVICE

  1. If you are accepting these Terms of Service on your own behalf, then the terms “you”, “your”, “user” and “Customer” means the individual accepting these Terms of Service and such individual is personally bound by these Terms of Service. If you are accepting these Terms of Service on behalf of a company or other legal entity, then the terms “you”, “your”, “user” and “Customer” mean such company and its affiliates, officers, directors, employees, agents, contractors and assigns. If you are entering into these Terms of Service on behalf of a company or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms of Service. If you do not have such authority, do not accept these Terms of Service or use the Site or Services.
  2. Certain of the Services may be subject to additional terms and conditions specified by us from time to time. Your use of such Services is subject to your agreement to those additional terms and conditions, which, upon your agreement, will be thereby incorporated into these Terms of Service by this reference.
  3. These Terms of Service apply to all users of the Site and Services, whether or not such users have registered for any Services, including, without limitation, users who are contributors of content, information, materials or services.
  4. You may not access the Site or Services if you are our direct competitor, except with our prior written consent. In addition, you may not access the Site or Services for purposes of monitoring or analysing their availability, performance or functionality, or for any other benchmarking or competitive purpose.

4. THE SITE AND THE SERVICES

This Site provides access to two Supplier services ‘Prepare’ and ‘View’. Under each section users can access information about gender pay gap reporting. ‘Prepare’ allows users to follow an online process to help them prepare their gender pay gap reports. Two online services can be accessed:

  • ‘Report it’ provides a basic online gender pay reporting service for no fee. Users can produce the mandatory gender pay gap metrics and a report and accompanying narrative
  • ‘Investigate it’ allows organisations to understand where and why they have a gender pay gap through online analytics capabilities that form part of the service.

To use these services, Users are required to establish an account. More details on this can be found in Section 6.

Through the Site, users can also access ‘View’ which allows users to access insights and analysis on UK gender pay gap reporting statistics. The data in ‘View’ has been prepared in accordance with Open Government Licence v3.0. The UK government gender pay gap is freely available from the GOV.UK Gender pay gap service. How this data is presented under ‘View’ and all accompanying tables, charts, graphics and analysis are subject to Staffmetrix ‘Intellectual Property Rights’ as defined in Section 22.

To access some of the functionality under View, users are required to create an account in accordance with Section 5.

5. CONSULTING SUPPORT

If required, the Customer can ask the Supplier to supplement both ‘Prepare’ and ‘View’ services with consultancy support. Where this is the required:

  • the Supplier will apply due care and the necessary skills and resources to meet the deliverables as described in the scope of work to be agreed between the Supplier and Customer;
  • the Supplier will observe deadlines and timescales while recognising that time shall not be of the essence in such engagements;
  • the Customer will be required to provide the Supplier with all necessary resources to perform the Services;
  • the Supplier also has the right to engage the services of partners and associates to assist with the delivery of the Services.

6. CREATING AN ACCOUNT

Users and Customers have the option of creating an account to access Services. When doing so, Users must ensure that the information provided is accurate, complete and up to date. The Services offered under ‘Prepare’ are designed for use by professional organisations only, serving as a portal for access to the Staffmetrix gender pay gap reporting service.

‘Prepare’ also provides information on the Services provided by Staffmetrix to its registered customers and their employees and other designated users. Use of ‘Prepare’ is limited to Staffmetrix customers who have contracted with Staffmetrix for the Services and, if applicable, such customers' users. No other use of this Site is permitted. The Services include, but are not limited to, the gender pay gap reporting services provided by Staffmetrix to registered users via the Internet. Following acceptance of these Terms of Service, and provided that you are not in breach of these Terms of Service, you will have access to the Services either as our customer or as a designated user of our customer. Your access to Services will be limited based on your status and is subject to these Terms of Services for the Services at www.paygaps.com. Notwithstanding anything to the contrary in these Terms of Service, the Services, or any portion thereof, may be amended, modified, updated, discontinued or replaced by Staffmetrix at any time in its sole discretion. If you register for a free trial for the Services, these Terms of Service will also govern you use of the Services during that free trial.

Users also have the option of creating an Account under ‘View’ to access additional functionality that may be available on the Site now or in the future. All personal information required to create an Account must be accurate.

7. ELIGIBILITY

  1. By using the Site or Services, you represent and warrant to us that: (a) you are eligible to use the Site and Services, as applicable, and have the right, power, and ability to enter into and perform under these Terms of Service; (b) the name identified by you when you registered is your name and the name of the organisation you represent; (c) you and your use of the Site and Services will comply with all local laws, rules and regulations applicable to you, including any applicable tax laws and regulations; (d) you will not use the Site or Services, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the provision or use of the Site or Services; (e) your primary residence is located in the United Kingdom; (f) you are not listed on any UK Government list of prohibited or restricted parties; and (g) the bank account(s) and/or payment card(s) you registered in your Account are owned by you or the organisation you represent, have been issued in your name and are in good standing.
  2. We may, in our sole discretion, refuse to offer the Site or Services to any person or entity, and change our eligibility criteria, at any time. You are solely responsible for ensuring that your use of the Site and Services are in compliance with all laws, rules and regulations applicable to you. We reserve the right to refuse or revoke your access to the Site and Services where use of the Site and Services is prohibited or to the extent that the offering, sale, provision or use of the Site or Services conflicts with any applicable law, rule or regulation. The Site and Services are offered only for your use, and not for the use or benefit of any third party.

8. REGISTRATION

Prior to using the Services, you must register for a user account (an “Account”) using accurate and complete information and keep your Account information updated. You shall not: (i) select or use as a username a name of another person with the intent to impersonate that person; (ii) use as a username a name subject to any rights of a person other than you without appropriate authorisation; or (iii) use, as a username, a name that is otherwise offensive, vulgar or obscene. You are solely responsible for the activity that occurs on your Account, and for keeping your Account user ID and password secure. You may never use another person’s user account or registration information for the Services without permission. You must notify us immediately of: (a) any change in your eligibility to use the Services, (b) a breach of security involving your Account, registration information, or the Services, or (c) unauthorised use of your Account. You should never publish, distribute or post login information for your Account. If the security of your Account is compromised, you will have the ability to delete your Account by following the instructions on the Site or Services.

9. FEES AND EXPENSES

The fees applied relate to the use of the paygaps.com gender pay gap service and are as follows:

  • ‘Report it’ – there is no cost attached the use of our basic service;
  • ‘Investigate it’ - £99 a month + VAT per annum; and
  • ‘Improve it’ – we also offer consultancy support for £100 per hour.

Cancellation

  • subscriptions must be cancelled 30 days in advance in writing
  • 100% of subscriptions are payable for 30 days after the cancellation notice has been submitted;
  • Consulting Services must be cancelled 10 working days in advance otherwise 100% of the consulting fee is payable. 50% of the fees are payable if the engagement is cancelled between 10 and 15 working days in advance; and
  • Consulting Services will be paid for in advance unless otherwise agreed. The Supplier is registered for VAT and for this reason VAT will be applied to each invoice where applicable.

10. MODIFICATION, DISCLOSURES AND NOTICE

  1. Staffmetrix reserves the right to change, modify delete, replace or update these Terms of Service or other policies that govern use of the Site or Services at its discretion, at any time, for any reason, without notice, including without limitation the right to terminate, change or suspend the Site or Services (including without limitation, the availability of any feature, database, or content), any part of the Site or Services, or one or more users’ access to the Site or Services. We may also impose limits on certain features and services or restrict your access to parts or all of the Site or Services without notice or liability. Any amendments and modifications by Staffmetrix will be prospective only, and unless otherwise provided in these Terms of Service, will be effective upon being posted on the Site or by sending you notice through the Site or Services, or by emailing you at the email address provided by you in connection with your Account or by another appropriate means of electronic communication. Staffmetrix encourages you to review these Terms of Service periodically for updates and changes. Your continued access or use of the Site or Services shall be deemed acceptance of all changes.
  2. You agree that we can provide these Terms of Service and Privacy Policy (and revisions or amendments), notices, disclosures, payment authorisations, and any other matter relating to your use of the Site or Services to you electronically, either by posting it on the Site, or by sending you notice through the Site or Services, or by emailing you at the email address provided by you in connection with your Account. You further agree that such communications have the same meaning and effect as if we had provided you with a paper copy. You should maintain copies of electronic communications by printing a paper copy or saving an electronic copy as applicable. Electronic communications shall be deemed received by you when they are posted to or communicated to you through the Site or Service, or sent to the email address provided by you in connection with your Account.

11. PRIVACY POLICY

The Staffmetrix Privacy Policy contains information about Staffmetrix privacy practices in connection with the Site and Services. The Privacy Policy is incorporated into these Terms of Service by this reference and explains how Staffmetrix collects, uses and shares your personal information in connection with the Site and Services. When you create an Account or use the Site or Services, you thereby agree to the terms of the Privacy Policy.

12. SUPPLIERS LIABILITY

To enable the Supplier to provide Services to the Customer, the Customer may be required to submit anonymised employee data.

In the event that the Customer provides Personal Data to the Supplier in order for the Supplier to perform the Service, the parties shall comply with the provisions and obligations imposed on them by the Data Protection Laws at all times when processing Personal Data in connection with such exercise. In such circumstances, the Supplier shall be a Data Processor and the Customer shall be a Data Controller. The nature, purpose and duration of the processing shall be solely for the Supplier to carry out the Service.

Where the Supplier receives from, or processes any Personal Data on behalf of, the Customer, the Supplier shall:

  1. process such Personal Data only in accordance with the Client’s written instructions from time to time
  2. ensure that any of its personnel who have access to such Personal Data are committed to binding obligations of confidentiality when processing such Personal Data
  3. implement and maintain technical and organisational measures and procedures to ensure an appropriate level of security for such Personal Data, including protecting such Personal Data against the risks of accidental, unlawful or unauthorised destruction, loss, alteration, disclosure, dissemination or access
  4. not transfer such Personal Data outside the United Kingdom and the European Economic Area without the prior written consent of the Customer
  5. inform the Customer without undue delay if any such Personal Data is (while within the Supplier's or its subcontractors' or affiliates' possession or control) subject to a Personal Data Breach or is otherwise lost or destroyed or becomes damaged, corrupted or unusable
  6. at the Customer’s sole option, return or irretrievably delete all Personal Data on completion of the Service, and not make any further use of such Personal Data thereafter
  7. provide to Customer and any Data Processing Regulator such information and assistance as is reasonably required to demonstrate or ensure compliance with the obligations in this clause and/or the Data Protection Laws
  8. take such steps as are reasonably required to assist the Client in ensuring compliance with its obligations under Articles 30 to 36 (inclusive) of GDPR
  9. notify the Client within two (2) business days if it receives a request from a Data Subject to exercise its rights under the Data Protection Laws in relation to that person's Personal Data
  10. provide the Client with such co-operation and assistance as may reasonably be required in relation to any request made by a Data Subject to exercise its rights under the Data Protection Laws in relation to that person's Personal Data
  11. not disclose any Personal Data to any Data Subject other than at the written request of the Customer or as expressly provided for in these Conditions
  12. The accuracy and quality of the outputs from our Service are dependent on the i) accuracy and quality of the employee data and ii) the format (provided by the Supplier) in which the data is uploaded by the Customer. On this basis we offer no guarantee or warranty of any kind, express or implied, concerning the delivery delays, accuracy, level of performance, comprehensiveness or suitability of the information and materials found through our Site or Service.

The Customer shall enter into appropriate confidentiality agreements (as reasonably required by the Supplier).

13. LICENSE GRANT

Subject to these Terms of Service, we grant each user of the Site and Services a limited, revocable, non-exclusive, non-sublicensable and non-transferable license to use the Site or Services solely for purposes of using the Services. We may in our sole discretion suspend, discontinue or terminate this license at any time, for any reason. All rights not expressly granted to you are reserved by Staffmetrix. If you use the Staffmetrix gender pay gap reporting service, you agree to be bound by the end user license agreement applicable to such application.

14. RULES OF CONDUCT

  1. As a condition of use, the Customer will promise not to use the Site or Services for any purpose that is prohibited by these Terms of Service. The Customer is responsible for all of their activity in connection with the Site and Services.
  2. The Customer shall not (and shall not permit any third party to) either (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any Content on or through the Site or Services, including without limitation any Content, that:
    1. infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity or violates any law or contractual duty;
    2. is false, misleading, untruthful or inaccurate;
    3. contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of ours or of any third party
    4. impersonates any person or entity, including any of our employees or representatives; or
    5. includes anyone’s identification documents or sensitive employee data or financial information without that person’s authorisation.
  3. The Customer shall not: (i) take any action that imposes or may impose (as determined by us in our sole discretion) an unreasonable or disproportionately large load on our (or our third party providers’) infrastructure; (ii) interfere or attempt to interfere with the proper working of the Site or Services or any activities conducted on the Site or Services; (iii) bypass, circumvent or attempt to bypass or circumvent any measures we may use to prevent or restrict access to the Site or Services (or other accounts, computer systems or networks connected to the Site or Services); (iv) run any form of auto-responder or “spam” on the Site or Services; (v) use manual or automated software, devices, or other processes to “crawl” or “spider” any page of the Site; (vi) harvest or scrape any Content from the Site or Services; or (vii) otherwise take any action in violation of our guidelines and policies.
  4. The Customer shall not (directly or indirectly): (i) decipher, decompile, disassemble, reverse engineer or otherwise attempt to derive any source code or underlying ideas or algorithms of any part of the Site or Services (including without limitation any application), except to the limited extent applicable laws specifically prohibit such restriction, (ii) modify, translate, or otherwise create derivative works of any part of the Site or Services, or (iii) copy, rent, lease, distribute, or otherwise transfer any of the rights that you receive hereunder. The Customer shall abide by all applicable local and international laws and regulations.
  5. The Supplier also reserves the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce these Terms of Service, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of us, our users and the public.

15. LINKS TO OTHER WEBSITES AND SOCIAL MEDIA

  1. The Site or Services may permit the Customer to link to other websites, services or resources on the Internet, and other websites, services or resources may contain links to the Site or Services. When the Customer accesses third party resources on the Internet, the Customer does so at their own risk. These other resources are not under the Suppliers control, and you acknowledge that the Supplier is not responsible or liable for the content, functions, accuracy, legality, appropriateness or any other aspect of such websites or resources. The inclusion of any such link does not imply the Suppliers endorsement or any association between the Supplier and their operators. You further acknowledge and agree that the Supplier shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such website or resource. When the Supplier use’s a link to go to another website, our Privacy Policy is no longer in effect. Your browsing and interaction on any other website is subject to that website's own rules, policies, terms and conditions.
  2. We may allow you to use Facebook, Twitter, email and other social networking platforms (collectively, “Social Media”) in order to “like us”, communicate and share information about the Site or Services. If you choose to use Social Media, you are solely responsible for ensuring that your use complies with all applicable laws, rules and regulations, these Terms of Service, and any terms, conditions and restrictions of the particular Social Media. Staffmetrix is not responsible for any emails, communication or information you send or receive using such features. If you share information with another person through email functionality, you represent and warrant that you have the authority to provide the recipient's email address and expressly authorise us to send the email on your behalf. We may elect not to transmit any email if the recipient has opted out of receiving emails from Staffmetrix and the opt out applies to this type of email.

16. PAYMENTS

You agree to provide us with current, complete and accurate information for any bank account or payment method that you wish to register in your Account. You must provide current, complete and accurate information for your Account. You must promptly update all information to keep your Account current, complete and accurate (such as a change in billing address, bank account number or payment method), and you must promptly notify us or our payment processor if your payment method is cancelled (e.g., for loss or theft) or if you become aware of a potential breach of security, such as the unauthorised disclosure or use of your username or password. Changes to such information can be made by logging into your user Account.

17. TERMINATION

We may terminate your access to all or any part of the Site or Services at any time, with or without cause, with or without notice, effective immediately, which may result in the forfeiture and destruction of all information associated with your subscription. If you wish to terminate your Account, you may do so by following the instructions on the Site or Services. Any fees paid hereunder are non-refundable. All provisions of these Terms of Service which by their nature should survive termination shall survive termination, including, without limitation, licenses of User Content, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

18. WARRANTY DISCLAIMER

The Site and Services are provided “as is”, “as available” and without warranty of any kind, express or implied, including, but not limited to, the implied warranties of title, non-infringement, merchantability and fitness for a particular purpose, and any warranties implied by any course of performance or usage of trade, all of which are expressly disclaimed. We, and our affiliates, officers, directors, employees, agents, contractors, suppliers and content providers, do not warrant that: (i) the Services will be secure or available at any particular time or location; (ii) any defects or errors will be corrected; (iii) any Content or software available at or through the Services is free of viruses or other harmful components; or (iv) the results of using the Services will meet your requirements. Your use of the Services and the Site is solely at your own risk.

19. INDEMNIFICATION

You shall defend, indemnify, and hold harmless us, our affiliates and each of our and their respective representatives, affiliates, officers, directors, employees, agents, contractors, suppliers and content providers from all liabilities, claims, and expenses, including reasonable legal fees, that arise from or relate to your use or misuse of, or access to, the Site, the Services or Content. Violation of these Terms of Service, or infringement by you, or any third party using your Account or identity on the Site or Services, of any intellectual property or other right of any person or entity. We reserve the right to assume the exclusive defence and control of any matter otherwise subject to indemnification by you, in which event you will assist and cooperate with us in asserting any available defences.

20. LIMITATION OF LIABILITY

In no event shall we, nor our affiliates, officers, directors, employees, agents, contractors, suppliers or content providers, be liable under contract, tort, strict liability, negligence or any other legal or equitable theory with respect to the Site or Services (i) for any lost profits, data loss, cost of procurement of substitute goods or services, or special, indirect, incidental, punitive, compensatory or consequential damages of any kind whatsoever, substitute goods or services (however arising), (ii) for any bugs, viruses, trojan horses, or the like (regardless of the source of origination), or (iii) for any direct damages in excess of (in the aggregate) of the greater of (a) the fees, if any, paid by you to us for the particular Services during the immediately previous three (3) month period or (b) the fees paid to Staffmetrix for your use of the particular Services during the immediately previous six (6) month period.

21. OWNERSHIP

The Site and Services are licensed and not sold to you. Staffmetrix, on behalf of itself and any current of future licensors and suppliers, reserves all rights not expressly granted to you in these Terms of Service. The Site and Services are protected by copyright, trade secret and other intellectual property laws. You acknowledge and agree that Staffmetrix, or its third party providers, or their respective licensors owns or has the legal right and title to the copyright and other worldwide intellectual property rights in the Site or Services. These Terms of Service do not grant you any rights to the trademarks or service marks of Staffmetrix, paygaps.com or its third-party providers or their respective licensors.

22. INTELLECTUAL PROPERTY RIGHTS

Staffmetrix is the owner of all intellectual property rights delivered through Site and Service. We retain all rights to the content (including, but not limited to text, images, charts, tables, analysis and comment, appearance, layout and graphics). You can only use of our copyrights, trademarks or similar marks with written permission.

You may not use or take ownership, modify or merge (with third party data) any of the data, insights or analysis from Site for commercial or personal use without written permission. paygaps.com must also be acknowledged as the full copyright owner.

By agreeing to use our service, you provide us with permission on a non-exclusive, transferable, worldwide, irrevocable, permanent, transferable, royalty-free license to use such data and distribute it for the purpose of being able to deliver our Service.

23. GOVERNING LAW AND JURISDICTION

These Terms of Service shall be governed by and interpreted in accordance with English Law, without regard to its conflict of laws principles. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction of the English Courts.

24. ENTIRE AGREEMENT AND SEVERABILITY

These Terms of Service are the entire agreement between you and us with respect to the Site and Services and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and us with respect to the Site and Services. If any provision of these Terms of Service is held to be invalid or unenforceable, it will be stricken from these Terms of Service and all other provisions of these Terms of Service will remain in full force and effect.

25. FORCE MAJEURE

We shall not be liable for any failure to perform our obligations hereunder where such failure results from any cause beyond our reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation.

26. ASSIGNMENT

These Terms of Service are personal to you and are not assignable, transferable or sublicensable by you except with our prior written consent. We may assign, transfer or delegate any of our rights and obligations hereunder without your consent.

27. NOTICES

Except as otherwise specified in these Term of Service, all notices under these Terms of Service will be in writing and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by email; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service.

28. WAIVER

Our waiver of or failure to exercise any right provided for in these Terms of Service will not be deemed a waiver of any further or future right under these Terms of Service.

29. SEVERABILITY

The provisions of this Agreement are intended by the parties to be severable in the event that any part of it is held to be illegal or unenforceable (in whole or in part) and such part shall not affect the validity and enforceability of the remaining provisions or the remainder of the affected provision under this Agreement.