Terms & Conditions

Definitions and interpretation

1.1           Definitions

In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:“Acceptance Date”

means the Acceptance Date set out in the Front Sheet;

“Agreement”
means the Front Sheet, these terms and conditions and the Schedules;

"Authorised User"
has the meaning set out in clause ‎3.2;

"Business Day"
means each day which is not a Saturday or Sunday or a bank or public holiday in England;

"Customer Data"
means all data, information and material input or uploaded to any Product or transmitted through the Service by the Customer and/or any Authorised User including the personal data outlined in Schedule 2;

"Customer Materials"
means any material provided or made available by or on behalf of the Customer to Rotageek for the purposes of incorporation into any Product and/or the Service for the Customer or other permitted use by Rotageek in connection with any Professional Services, but excluding Customer Data;

"Confidential Information"
means all information (whether written, oral or in some other form) disclosed to or obtained by one party (whether directly or indirectly) from the other (whether before or after the signing of this Agreement), including all information relating to that other's, or any of its Group Members', business, operations, systems, processes, products, trade secrets, know how, contracts, finances, plans, strategies or current, former or prospective clients, customers, partners or suppliers (together with copies made of any of the foregoing) and which information is marked as being confidential or might reasonably be assumed to be confidential, but excluding information which:

(a)        is available to the public other than because of any breach of this Agreement;

(b)        is, when it is supplied, already known to whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others; or

(c)        is independently obtained by whoever it is disclosed to in circumstances in which they are not prevented from disclosing it to others;

Rotageek's Confidential Information includes the Product(s), Service (including the Rotageek Content but excluding Customer Data and Customer Materials) and Software and the terms of this Agreement;

"Data Protection Legislation"
means all privacy laws applicable to any Personal Data processed under or in connection with this Agreement, including, without limitation, the Data Protection Directive 95/46/EC (as the same may be superseded by the General Data Protection Regulation 2016/679 (the "GDPR")), the Data Protection Act 2018, the Privacy and Electronic Communications Directive 2002/58/EC and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced and in force from time to time;

“Fees”
means all fees set out in the Front Sheet;

"Go-Live Date"
means the Go-Live Date set out in the Front Sheet;

"Group Member"
means at the relevant time, in relation to any entity, an entity which, directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that entity, where "control" means holding, directly or indirectly, a majority of the voting rights in it, or the power to direct or cause the direction of its management, policies or operations, whether through holding of voting rights, by contract or otherwise;

"Term"
means the period set out on the Front Sheet during which the Services are provided;

"Intellectual Property Rights"
means patents, patentable rights, copyright, design rights, utility models, trade marks (whether or not any of the above are registered), trade names, rights in domain names, rights in inventions, rights in data, database rights, rights in know-how and confidential information, and all other intellectual and industrial property and similar or analogous rights existing under the laws of any country and all pending applications for and right to apply for or register the same (present, future and contingent, and including all renewals, extensions, revivals and all accrued rights of action);

"Professional Services"
means any professional services to be provided by Rotageek including set-up, configuration and training as set out in an additional Statement of Work;

"Product(s)"
means the version of the Rotageek product(s) set out in the Front Sheet;

"Rotageek Content"
means all data, information and material owned by or licensed to Rotageek or any of its Group Members and comprised within any Product and/or the Service, but excluding Customer Data and Customer Materials;

"Service"
means the service to be provided by Rotageek consisting of provision of access to the Product(s) on a software as a service (SaaS) basis;

"Software"
means any software owned by or licensed to Rotageek or any of its Group Members and which forms part of, or is used in the provision of, any Product or the Service;

"Statement of Work"
means a statement of work entered into between the parties for any additional purchased services.

1.2           Interpretation

In this Agreement (including the introduction and schedules) unless the context otherwise requires:

• reference to a person includes a legal person (such as a limited company) as well as a natural person;
• clause headings are for convenience only and shall not affect the construction of this Agreement;
• reference to "including" or any similar terms in this Agreement shall be treated as being by way of example and shall not limit the general applicability of any preceding words; and
• reference to any legislation shall be to that legislation as amended, extended or re-enacted from time to time and to any subordinate provision made under that legislation.
  
  

2.              Provision of Service

• Following the Effective Date, Rotageek shall configure and/or develop the Product(s) and configure and set-up the Service (including any agreed incorporation of any Customer Materials and any agreed integration with the Customer's systems).
• Following completion of configuration and/or development of the Product(s),Rotageek shall:
  • procure that the Service is enabled for the Customer in live production use; and
  • for the remainder of the term of this Agreement: (i) procure the hosting of the Product(s); and [(ii) support and maintain the Product(s) and Service as set out in Schedule 1.
• It is the Customer's responsibility to ensure it has equipment (of appropriate specification and compatible with the Product(s) and the Service) and internet connection to enable the Customer to connect to the Service. The Customer acknowledges that it is responsible for all charges for internet access (including mobile data usage) charged by its internet service provider.
• The Customer acknowledges and agrees that Rotageek's provision of the support and maintenance services and any Professional Services shall be conditional upon:
  • the Customer promptly providing all reasonable assistance, information and decision-making as reasonably required by Rotageek from time to time, which it agrees to give; and
  • the Customer providing Rotageek with (or access to) Customer Data and the Customer Materials as required by an additional Statement of Work;
  • all Customer Materials being reliable, accurate and complete in all respects.
    
    

3.              Grant of licence and scope of authorised use

• Subject to full payment of the applicable Fees and subject to the other provisions of this Agreement, the Customer is granted a non-transferable, non-exclusive non sub-licensable licence, for the Term, to access and use the Product(s) and Service for up to the number of Authorised Users set out in the Front Sheet and in accordance with any other restrictions there set out. Without prejudice to clause ‎2, the Customer may not sub-license the right to access and/or use any Product or the Service to any third party. The Customer is licensed to access and use only the Product(s) set out in the Front Sheet and may do so only by means of the Service. Except as expressly set out in this Agreement, all rights in and to the Product(s), Service (including the Rotageek Content but excluding Customer Data and Customer Materials) and Software are reserved to Rotageek.
• Only the Customer is licensed to access and use the Product(s) and Service and solely for its internal business purposes. Use by the Customer includes use by:
  • the Customer's employees;
  • any contract staff who are working for the Customer; and
  • any other person working with, or on behalf of, the Customer;

being both the staff whose shifts are scheduled by the Customer using the Product and the managers who oversee such scheduling (each an "Authorised User");

provided that, in each of these cases, the person concerned is accessing and using the Product(s) and Service exclusively on the Customer's behalf, for the above purposes, and with the Customer's authorisation and provided always that no more than the number of users set out in the Front Sheet may access and use the Product(s) and Service.

• The Customer shall comply with, and shall ensure that each Authorised User consents to and complies with, any terms of use or service (including any acceptable use policy) and privacy policy that Rotageek may publish online through the Service, each as updated by Rotageek from time to time, all of which are incorporated into this Agreement by reference.
• In the event that the number of Authorised Users exceeds the range specified in the Front Sheet, Rotageek reserves the right to charge the Customer accordingly.
• The Customer shall not:
  • except as expressly permitted by this Agreement, permit any third party to access or use any Product or the Service or use the same on behalf of any third party (which includes operating any form of facility on behalf of any third party or operating a software bureau or similar service);
  • copy, translate, modify, adapt or create derivative works from any Product or the Service;
  • create Internet "links" to the Service or "frame" or "mirror" any Rotageek Content on any other server or wireless or Internet-based device;
  • attempt to discover or gain access to the source code for the Software or reverse engineer, modify, decrypt, extract, disassemble or decompile the Software (except strictly to the extent that the Customer is permitted to do so under applicable law in circumstances under which Rotageek is not lawfully entitled to restrict or prevent the same), including in order to:
    • build a competitive product or service;
    • build a product using similar ideas, features, functions or graphics of the Service; or
    • copy any ideas, features, functions or graphics of the Service;
  • employ any hardware, software, device or technique to pool connections or reduce the number of devices or users that directly access or use any Product and/or the Service (sometimes referred to as 'virtualisation', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorised use contained in this Agreement;
  • obscure, amend or remove any copyright notice, trade mark or other proprietary marking on, or visible during the operation or use of, any Product, the Service or Software;
  • attempt to gain unauthorised access to or interfere with the proper working of any Product, the Service or Software and, in particular, must not attempt to circumvent security, licence control or other protection mechanisms, or tamper with, hack into or otherwise disrupt any Product, the Service or Software or any associated website, computer system, server, router or any other internet-connected device;
  • provide false identity information to gain access to or use the Service;
  • forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Data transmitted through the Service; or
  • use any Product or the Service to:
    • upload, store, post, transmit, distribute, link to or otherwise make available, or advertise or promote any content that infringes any Intellectual Property Rights or data protection, privacy or other rights of any other person, is defamatory or in breach of any contractual duty or any obligation of confidence, is obscene, sexually explicit, threatening, abusive, harassing, inciteful of violence or hatred, blasphemous, discriminatory (on any ground), liable to cause anxiety, alarm or embarrassment, knowingly false or misleading, or that does not comply with all applicable laws and regulations or is otherwise objectionable or prohibited as set out in any acceptable use policy published online through the Service, as updated by Rotageek from time to time ("Prohibited Content");
    • impersonate any person or entity or otherwise misrepresent the Customer's relationship with any person or entity;
    • engage in any fraudulent activity or further any fraudulent purpose;
    • provide material support or resources (or to conceal or disguise the nature, location, source, or ownership of material support or resources) to any organisation(s) designated by the government of the United Kingdom or any foreign government as a foreign terrorist organisation;
    • "stalk" or otherwise harass another person or collect or store unauthorised personal data in relation to any individual;
    • transmit or distribute any unsolicited or unauthorised advertising, marketing or promotional material or other form of solicitation (spam); and/or
    • transmit or distribute any virus and/or other code that has contaminating or destructive elements; and shall not permit any Authorised User or other third party to do any of the foregoing.

• The Customer understands that the Product(s), the Service and/or Software may include security components that permit digital materials to be protected, and that use of these materials is subject to usage rules set by Rotageek and/or content providers who provide content to the Products(s) and/or the Service. The Customer may not attempt to override or circumvent any of the usage rules embedded into the Service. Any unauthorised reproduction, publication, further distribution or public exhibition of the Rotageek Content, in whole or in part, is strictly prohibited.
  
  

4.              Administrator and Authorised Users

• The Customer shall designate one contact and one alternate as the responsible party for communication with Rotageek during the term of this Agreement ("System Administrator"). The Customer's System Administrator shall have the authority to bind the Customer, except that another duly authorised representative of the Customer may change its System Administrator by giving written notice to Rotageek in accordance with clause ‎2.
• Rotageek will establish accounts for Authorised Users, with unique login credentials and passwords. The Customer is solely responsible for determining the skill, competence, character and other attributes of all Authorised Users.
• The Customer shall ensure that each Authorised User shall, as a condition of being granted access to any Product and/or the Service, be required by the Customer's System Administrator to acknowledge the obligations on the Customer under this Agreement respecting authorised use (and restrictions on use) of the Product(s) and Service and agree to comply with the same. The Customer shall immediately notify Rotageek in the event that the Customer becomes aware of any breach of this Agreement by any Authorised User.
• The Customer shall be responsible for the use of the Product(s) and Service ensuring that the Authorised Users use the Product(s) and Service in the course of their employment or contract with the Customer and in accordance with this Agreement.
• Rotageek shall be responsible for access to the Product(s) and Service by Authorised Users. Rotageek shall be responsible for ensuring the security and confidentiality of all log-on identifiers, including usernames and passwords, assigned to any Authorised User in order to access or use any Product and/or the Service ("ID").
• The Customer agrees that under no circumstances may IDs be transferred or shared between individual Authorised Users and 'general' (non-individually assigned) IDs may not be created. The Customer acknowledges and agrees that the Customer will be solely responsible for all activities that occur under such ID. The Customer shall promptly notify Rotageek upon becoming aware of any unauthorised access to or use of any Product and/or the Service, and provide all reasonable assistance to Rotageek to bring an end to such unauthorised access or use.
  
  

5.              Fees, invoicing and payment

• The Customer shall pay all Fees in accordance with the invoice schedule and payment terms set out in the Front Sheet. Fees are not refundable during the Term unless pre agreed between the parties.
• The annual licence fees and any associated hosting fees are subject to review and increase by Rotageek upon 30 days' notice, not more than once a year, provided that no such increase will apply prior to the end of the first 12-months from the Go-Live Date and no such increase in the annual licence fees will exceed the equivalent of the percentage increase in the Retail Prices Index over the 12-month period immediately preceding the notice of increase.
• Without prejudice to any other right or remedy available to Rotageek and without giving the Customer permission to exceed the number of Authorised Users (if any) set out in the Front Sheet, Rotageek reserves the right to charge additional licence fees in the event that such number of Authorised Users is exceeded in accordance with the provisions set out in the Front Sheet, except with Rotageek's prior written consent.
• The Customer shall pay the fees in respect of any Professional Services as set out in the Front Sheet.
• If the sums due under this Agreement are not paid in full by the due date, Rotageek may, without limiting its further rights, charge interest at 4% a year above the base rate of Bank of England base rate from time to time in force. Such interest shall accrue on a daily basis from the due date until actual date of payment.
• Unless otherwise expressly provided in this Agreement, all amounts referred to in this Agreement are exclusive of value added tax (VAT) or other applicable sales tax which, where chargeable by Rotageek, shall be payable by the Customer at the rate and in the manner prescribed by law.
• Invoices are payable, in full, upon delivery and without deduction, set off or withholding of any kind. In the event of any dispute as to the amount of an invoice, the Customer shall pay the amount in full pending the resolution of any dispute and Rotageek shall make any adjustment due immediately upon such resolution. 
  
  

6.              Warranties

• Rotageek warrants that:
  • it has the right to enter into this Agreement and to provide the Service as contemplated by this Agreement;
  • the Product(s) and Service shall, under normal operating conditions, substantially conform to the functionality described in the specification set out on the relevant product pages at Rotageek's website at rotageek.com; and
  • the support and maintenance services and Professional Services shall be performed with reasonable care and skill.
• If any of the warranties in clause ‎1 is breached, the Customer must notify Rotageek as soon as possible. The Customer must give Rotageek a reasonable time to fix the problem, including (in Rotageek's discretion) by making available a corrected version of the Product(s) and/or Service (as the case may be) or a reasonable way to work around the problem that is not materially detrimental to the Customer and/or by re-performing any relevant services. This will be done without any additional charge to the Customer. If Rotageek is able to do this within a reasonable time, this shall be the Customer's sole and exclusive remedy in relation to such breach and Rotageek will, subject to clause ‎9.1, have no other obligation or liability in relation to such breach.
• Rotageek does not control the content posted to or via the Service and, in particular, does not control the Customer Data and, as such, Rotageek does not make or give any representation or warranty as to the accuracy, completeness, currency, correctness, reliability, integrity, usefulness, quality, fitness for purpose or originality of any of the foregoing content or data.
• Except as expressly set out in this Agreement and subject only to clause ‎1, no implied conditions, warranties or other terms, including any implied terms relating to satisfactory quality or fitness for any purpose, will apply to the Product(s), Service (including any Rotageek Content) or Professional Services or to anything supplied or provided by Rotageek under this Agreement. In particular, Rotageek does not warrant that the operation of any Product or the Service will be uninterrupted, contaminant-free or error-free, or that they will meet the Customer's requirements.
• The Customer agrees that it is solely responsible for its selection of the Product(s) and Service and for all use it makes of them, and all reliance it chooses to place on the Product(s) and any Rotageek Content. The Customer acknowledges and agrees that the Product(s) and Rotageek Content are intended for general informational use and guidance purposes only, do not amount to professional advice on any particular matter and should not be relied upon in isolation in making any decision. In all cases, the Customer should exercise its own professional skill, discretion and judgement.
• The Customer shall ensure that its use of the Product(s) and Service, complies, in all respects, with all applicable laws, regulatory requirements, mandatory standards and codes of practice of any competent authority for the time being in force.
  
  

7.              Intellectual Property Rights

• Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.
• Rotageek and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in Rotageek's brands, trademarks and logos, the Product(s), the Service (including the Rotageek Content but excluding Customer Data and Customer Materials) and the Software. Except as expressly permitted by this Agreement, the Customer may not use any of Rotageek's Intellectual Property Rights without Rotageek's prior written consent.
• The Customer shall promptly bring to the attention of Rotageek any improper or wrongful use of any Intellectual Property Rights of Rotageek which comes to the Customer's notice. The Customer shall assist Rotageek in taking all steps to defend Rotageek's Intellectual Property Rights, but not institute legal proceedings of its own accord.
• The Customer and/or its licensors shall, as between the parties, remain the owner of all Intellectual Property Rights in the Customer Data and Customer Materials. The Customer grants Rotageek, free of charge, a royalty-free, worldwide, non-exclusive licence to use the Customer Data and Customer Materials only to such extent as is necessary to enable Rotageek to provide the Service and to perform its obligations under this Agreement. The Customer warrants that the Customer owns the Customer Data and Customer Materials and/or are otherwise entitled to grant the foregoing licence. If this Agreement is terminated, the foregoing licence will automatically terminate.
  
  

8.              Indemnities

• Rotageek shall indemnify the Customer and keep the Customer indemnified from and against all losses, damages, liabilities from and against all losses, damages, liabilities, claims, costs and expenses (including reasonable legal costs) which are incurred and/or suffered by the Customer arising out of or in connection with any claim by a third party that the access and use, in accordance with this Agreement, by the Customer of any Product and/or the Service infringes the Intellectual Property Rights of any third party.
• If the Customer's access or use, in accordance with the terms of this Agreement, of any Product and/or the Service is, or in Rotageek's reasonable opinion is likely to become, enjoined as a result of a claim for which Rotageek is obliged to indemnify the Customer further to clause ‎1, then Rotageek shall, at its sole option, and at its own cost and expense, make all reasonable efforts, as soon as reasonably possible to:
  • procure for the Customer the continuing right to access and use such Product and/or the Service (as the case may be), in accordance with this Agreement, without infringement; or
  • replace or modify such Product and/or the Service (as the case may be) with software and/or services of substantially equivalent specification so as to avoid the infringement; and provided Rotageek does so, it shall have no further liability to the Customer in respect of the infringement claim.

• The Customer shall indemnify Rotageek and keep the Rotageek indemnified from and against all losses, damages, liabilities from and against all losses, damages, liabilities, claims, costs and expenses (including reasonable legal costs) which are incurred and/or suffered by the Customer arising out of or in connection with:
  • any Customer Data (including the failure to keep such Customer Data up-to-date) or Rotageek's receipt, possession and/or use, in accordance with this Agreement, of any Customer Materials; and/or
  • any claim by a third party as a result of the Customer's (and any Authorised User's) use, misuse or failure to use any Product and/or the Service, including where the Customer has failed to communicate to the Authorised Users how to use the Product and/or the Service.
• The indemnities in clauses 8.1 and 8.3 shall be conditional upon:
  • the indemnified party promptly notifying the indemnifying party in writing of any claim in respect of which indemnifying party is obliged under this Agreement to indemnify and of which it has notice (an "Indemnified Claim");
  • the indemnified party not admitting any liability or agreeing to any settlement or compromise of an Indemnified Claim without the prior written consent of the indemnifying party;
  • The indemnifying party being, at any time from notification in accordance with clause ‎3‎(a), at the indemnifying party’s request, cost and expense, entitled to assume exclusive conduct of the Indemnified Claim (which shall include the right to conduct any proceedings or action in relation to, negotiate the settlement of, and to conduct all discussions and dispute resolution efforts in connection with the Indemnified Claim, provided that no settlement of a claim which would involve any admission of fault or liability on the indemnified party’s part shall be entered into without its prior written consent);
  • the indemnified party, at the indemnifying party’s request, cost and expense, giving the indemnifying party all reasonable assistance in connection with the conduct of the Indemnified Claim; and the indemnified party shall mitigate its losses.
    
    

9.              Exclusions and limitations

• Nothing in this Agreement limits or excludes either party's liability:
  • for death or personal injury caused by its negligence;
  • for fraudulent misrepresentation or for any other fraudulent act or omission;
  • to pay sums properly due and owing to the other in the normal course of performance of this Agreement; or
  • for any other liability which may not lawfully be excluded or limited.
• Subject to clause ‎1, Rotageek shall not be liable (whether from breach of contract, tort (including negligence), any indemnity liability, breach of statutory duty or otherwise) for any: (a) loss of profit; (b) loss of sales, turnover, revenue or business; (c) loss of customers, contracts or opportunity; (d) loss of or damage to reputation or goodwill; (e) loss of anticipated savings; (f) loss of any software or data; (g) loss of use of hardware, software or data; (h) loss or waste of management or other staff time; or (i) any indirect, consequential or special loss arising out of or relating to this Agreement.
• Subject to clause ‎1, Rotageek shall not be liable, whether in contract, tort (including negligence), breach of statutory duty, under any indemnity or otherwise, for any loss, damage, expense or liability incurred or sustained as a result of:
  • the use of any Product and/or the Service except for its normal intended purpose and the failure of any Authorised User to use any Product and/or the Service;
  • any adaptation or modification of any Product and/or the Service, or integration or combination with any other equipment, software, product or material not supplied by Rotageek, in each case carried out by anyone other than Rotageek or without Rotageek's express written consent;
  • any defect arising in any Product as a result of misuse, wilful damage, negligence on the part of anyone other than Rotageek, abnormal operating conditions or any failure by the Customer to follow any instructions of Rotageek as to use;
  • the compliance by Rotageek with any design, specification or instructions provided by the Customer or on the Customer's behalf;
  • any Customer Data and/or Customer Materials and any failure to keep Customer Data up-to-date; or
  • the continued use of a version or release of any Product and/or the Service after Rotageek has made an alternative version or release of such Product and/or the Service available to the Customer, to the extent that any claim in respect of which Rotageek would otherwise be obliged, under this Agreement, to indemnify would have been avoided by the use of such alternative version or release.
• Subject to clauses ‎1 and ‎9.2, Rotageek's total liability arising out of or relating to this Agreement or its subject matter and to anything which it has done or not done in connection with the same (whether from breach of contract, tort (including negligence), any indemnity liability, breach of statutory duty or otherwise) shall be limited as follows: (a) in respect to a breach of Clause 7 (Intellectual Property), Clause 8 (Indemnities), Clause 10 (Confidentiality) and Clause 11 (Confidentiality) a sum not exceeding £100,000; (b) in respect of all other liability a sum not exceeding  the total amounts paid or payable in the 12 months preceding the date such issue arises.
  
  

10.           Confidentiality

• Subject to clause ‎2, each party shall:
  • keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;
  • apply to it no lesser security measures and degree of care than those which it takes in protecting its own Confidential Information and in any event no less than that which a reasonable person or business would take in protecting its own confidential information;
  • only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;
  • not disclose such Confidential Information to any third party (other than its professional advisers, officers, employees, agents, contractors and sub-contractors on a 'need to know' basis as strictly required for the purposes of this Agreement and subject to each such person being bound by an obligation of confidentiality equivalent to this clause ‎10); and
  • promptly, upon request and, in any event, upon termination of this Agreement (for whatever reason), return to the other party all materials (in whatever form) incorporating, embodying or recording any such Confidential Information in its possession or control and, if requested by the other party, certify in writing that it has done so.
• Either party may disclose the other's Confidential Information to the extent required by law or by any court, tribunal, regulator or other authority with competent jurisdiction to order its disclosure (but only to the extent of such requirement).
• The Customer agrees that Rotageek may issue a press release or other suitable form of publicity (including on Rotageek's website) advertising that it is a customer of Rotageek.
  
  

11.           Data protection

• Each party shall:
  • at all times during the term of this Agreement, comply with the Data Protection Legislation; and
  • to the extent applicable under the Data Protection Legislation, obtain and maintain all appropriate registrations required in order to allow that party to perform its obligations under this Agreement.
• In this clause ‎11, the terms "personal data", "process" and "processor" shall have the meanings given in the applicable Data Protection Legislation. The parties acknowledge that the types of personal data processed pursuant to this Agreement (including the subject matter, duration, nature and purpose of the processing and the categories of data subject) are as described in Schedule In relation to all personal data provided or made available to Rotageek by or on behalf of the Customer and/or any of its Group Members, Rotageek:
  • acknowledges that, as between the parties, it acts only as a processor (and the Customer acknowledges that it acts as data controller);
  • shall only process such personal data in accordance with this Agreement and the Customer's instructions issued from time to time (which the Customer shall ensure are compliant with the Data Protection Legislation);
  • shall implement and operate, and shall procure that any permitted sub-processor implements and operates, appropriate technical and organisational measures to ensure a level of security appropriate to the risks that are presented by any processing of such personal data, in particular protection from accidental loss or unlawful destruction, loss, alteration, unauthorised disclosure of, or access to, personal data transmitted, stored or otherwise processed by Rotageek pursuant to this Agreement;
  • shall not, without the prior written consent of the Customer, transfer any such personal data to a country or territory outside the European Economic Area unless adequate contractual or other assurances have first been put in place such as will enable each party to comply with the requirements of the Data Protection Legislation; and
  • from the date the GDPR enters into legal force and effect in the United Kingdom, comply with the additional provisions set out in Schedule 2.
    
    

12.           Term and termination

12.1        This Agreement shall commence on the Effective Date and continue for a period set out in the Front Sheet.

12.2        This Agreement shall, unless sooner terminated in accordance with its terms, continue for the Term and thereafter shall continue for subsequent 12 month terms subject to either party being able to terminate the Agreement for convenience on giving 90 days written notice to the other party prior to the end of a 12 month term, such notice not to expire until the end of each 12 month term. For the avoidance of doubt, if no notice is given the Agreement shall continue for a further 12-month term.

• Either party may terminate this Agreement by giving the other written notice if:
  • the other materially breaches any term of this Agreement and it is not possible to remedy that breach;
  • the other materially breaches any term of this Agreement and it is possible to remedy that breach, but the other fails to do so within 90 days of being requested in writing to do so;
  • the other becomes insolvent, makes composition with its creditors, has a receiver or administrator of its undertaking or the whole or a substantial part of its assets appointed, or an order is made, or an effective resolution is passed, for its administration, receivership, liquidation, winding-up or other similar process, or has any distress, execution or other process levied or enforced against the whole or a substantial part of its assets (which is not discharged, paid out, withdrawn or removed within 28 days), or is subject to any proceedings which are equivalent or substantially similar to any of the foregoing under any applicable jurisdiction, or ceases to trade or threatens to do so.
• For the purposes of this clause 12.4, in order for it to be possible to remedy a breach it must be possible to take steps so as to put the other party into the same position which (save as to the date) it would have been in if the breach had never occurred.
• Without prejudice to clauses ‎1 to ‎12.2, Rotageek may, in addition, and without liability, terminate this Agreement, or alternatively, may suspend access to and use of any Product and/or the Service, by giving the Customer written notice if:
  • any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;
  • any provision of clause ‎4 is breached; and/or
  • the Customer is in persistent or repeated breach of any of its obligations under this Agreement (whether or not it is the same obligation that is breached and whether or not such breaches are remedied).
    
    

13.           Consequences of termination

• Upon termination of this Agreement for any reason:
  • the Customer shall immediately cease to access, and discontinue all use of, the Product(s) and Service;
  • all amounts payable to Rotageek by the Customer shall become immediately due and owing. For the avoidance of doubt, except where terminated in accordance with clause ‎2 (during the Evaluation Period) no refund of fees paid in advance shall be due in respect of any unexpired portion of the then-current term; and
  • Rotageek shall use its reasonable endeavours to make available to the Customer, within 30 days of the effective date of termination, a file of Customer Data, if the Customer so requests at the time notice of termination is provided, except that Rotageek shall be under no obligation to do so where this Agreement is terminated by reason of the Customer's breach.
• The termination of this Agreement for any reason will not affect:
  • any accrued rights or liabilities which either party may have by the time termination takes effect; or
  • the coming into force or the continuation in force of any of its provisions that expressly or by implication are intended to come into force or continue in force on or after the termination. Without prejudice to the foregoing, clauses ‎1, ‎5, ‎6, ‎7, ‎8, ‎9, ‎10, ‎13 and ‎15 shall survive termination of this Agreement.
    
    

14.           Force majeure

Neither party will be liable to the other for any failure or delay in performing its obligations under this Agreement which arises because of any circumstances which it cannot reasonably be expected to control (which shall include but are not limited to an Act of God, explosion, flood, tempest, fire or accident, war or threat of war, sabotage, insurrection, civil disturbance or requisition, acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority, import or export regulations or embargoes, strikes, lock-outs or other industrial actions or trade disputes (whether involving personnel of Rotageek or a third party), difficulties in obtaining raw materials, labour, fuel, parts or machinery or breakdown in machinery, or interruption or failure of the Internet or of any network, telecommunications, power supply or infrastructure, or any provider of any of the foregoing, but shall not include shortage or lack of available funds on the Customer's part), provided that it:

• notifies the other in writing as soon as reasonably practicable about the nature and extent of the circumstances and likely effects;
• uses reasonable efforts to mitigate the effects of the circumstances so as to minimise or avoid any adverse impact on the other; and
• uses reasonable efforts to resume performance as soon as reasonably practicable.
  
  

15.           General

• The Customer may not sub-license or assign, sub-contract or delegate any or all of its rights or obligations under this Agreement without the prior written consent of Rotageek.
• All notices and consents relating to this Agreement (but excluding any proceedings or other documents in any legal action) must be in writing. Notices must be sent to the address of the recipient set out in the Front Sheet or otherwise notified by the relevant party in accordance with this Agreement. Notices shall be sent by hand, by first class recorded delivery or registered post or other form of certified or registered mail (and sent by air mail if posted to or from a place outside the United Kingdom), and shall be treated as having been delivered:
  • if sent by hand, when delivered; and
  • if sent by certified or registered mail, two days after the date of posting (or, if sent by air mail, seven days after the date of posting).
• Unless the parties expressly agree otherwise in writing, if a party:
  • fails to exercise or delays exercising or only exercises partially any right or remedy provided under this Agreement or by law; or
  • agrees not to exercise or to delay exercising any right or remedy provided under this Agreement or by law; then that party shall not be deemed to have waived and shall not be precluded or restricted from further exercising that or any other right or remedy.
• If any provision of this Agreement is held for any reason to be ineffective or unenforceable, this shall not affect the validity or enforceability of any other provision of this Agreement or this Agreement as a whole. If any provision of this Agreement is so found to be ineffective or unenforceable but would be effective or enforceable if some part of the provision were deleted, the provision in question shall apply with such modification(s) as may be necessary to make it effective and enforceable.
• All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.
• Except to the extent that this Agreement expressly provides otherwise, nothing in this Agreement shall or is intended to create a partnership or joint venture between the parties, constitute one party as agent of the other or give either party authority to make or enter into commitments, assume liabilities or pledge credit on behalf of the other party. Neither party may act as if it were, or represent (expressly or by implying it) that it is, an agent of the other or has such authority.
• A person who is not a party to this Agreement shall not have any rights under or in connection with it, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
• It is a condition of this Agreement that, in pre-contract negotiations and in the exercise of its rights or the performance of its obligations under this Agreement, each party shall at all times ensure that it complies with the terms of the Bribery Act 2010 and that it does not commit (or procure the commission of) any breach of that Act.
• This Agreement sets out all of the terms that have been agreed between the parties in relation to the subjects covered by it, and supersedes all previous agreements between the parties relating to such subjects. Provided always that nothing in this clause ‎9 will operate to limit or exclude any liability for fraud or fraudulent misrepresentation, no other representations or terms shall apply or form part of this Agreement and each party acknowledges that it has not been influenced to enter this Agreement by, and shall have no rights or remedies (other than for breach of contract) in respect of, anything the other party has said or done or committed to do, except as expressly recorded in this Agreement.
• This Agreement is governed by English law. Both parties submit to the exclusive jurisdiction of the English courts in relation to any dispute arising out of or in connection with this Agreement or its subject matter, but Rotageek is also entitled to apply to any court worldwide for injunctive or other remedies in order to protect or enforce its Intellectual Property Rights.

SCHEDULE 1

Service Availability, Maintenance and Support Services

Overview

This Schedule represents a service level agreement between the Customer and Rotageek in respect of the Product(s) and Service.

Part 1: Service Availability 

1. Introduction to availability SLA

1.1       This Part 1 of Schedule 1 sets out Rotageek's availability commitments relating to the Service.

1.2       In this Part 1 of Schedule 1, "uptime" means the percentage of time during a given period when the Service is available at the gateway between public internet and the network of the hosting services provider for the Service.

2. Availability

2.1       Rotageek shall use reasonable endeavours to ensure that the uptime for the Service is at least 99.5% during each calendar month.

2.2       Rotageek shall be responsible for measuring uptime, and shall do so using any reasonable methodology.

2.3       Subject to clause 2.1, Rotageek will use commercially reasonable efforts to make the Product(s) and Service available 24 hours a day, seven days a week, except for unavailability during emergency or routine maintenance.

3. Service Credits

3.1       In respect of each calendar month during which the Service uptime is less than the commitment specified in Clause 2.1 of Part 1, the Customer shall earn service credits in accordance with the provisions of this Clause 3 of Part 1.

3.2       The service credits earned by the Customer shall be as follows:

            Between 99.5 -100% - Meets target

            Between 95% - 99.5% - Five (5) day extension of the term of Service at no cost to the Customer.

            Below 95% - Ten (10) day extension to the term of the Service at no cost to the Customer.

3.3       Rotageek shall deduct an amount equal to the service credits due to the Customer under this Clause 3 of Part 1 from amounts invoiced in respect of the Rotageek Fees for the Service. All remaining service credits shall be deducted from each invoice issued following the reporting of the relevant failure to meet the uptime commitment, until such time as the service credits are exhausted.

3.4       Service credits shall be the sole remedy of the Customer in relation to any failure by Rotageek to meet the uptime guarantee in Clause 2.1 of Part 1.

3.5       Upon the termination of the Agreement, the Customer’s entitlement to service credits shall immediately cease, save that service credits earned by the Customer shall be offset against any amounts invoiced by Rotageek in respect of the Service following such termination.

4. Exceptions

4.1       Downtime cause directly or indirectly by any of the following shall not be considered when calculating whether Rotageek has met the uptime guarantee given in Clause 2.1 of Part 1:

(a)        a Force Majeure Event;

(b)        a fault or failure of the internet or any public telecommunications network;

(c)        a fault or failure of the Customer’s computer systems or networks;

(d)        any breach by the Customer of the Agreement; or

(e)        scheduled maintenance carried out in accordance with the Agreement.

Part 2: Maintenance Services

1. Introduction

1.1       This Part 2 of Schedule 1 sets out the service levels applicable to the maintenance services.

2. Updates

2.1       Rotageek shall apply Updates to the Rotageek Platform as follows:

(a)        third party security Updates shall be applied to the Rotageek Platform promptly following release by the relevant third party, providing that Rotageek may acting reasonably decide not to apply any particular third party security Update;

(b)        Rotageek's security Updates shall be applied to the Rotageek Platform promptly following the identification of the relevant security risk and the completion of the testing of the relevant Update; and

(c)        other Updates shall be applied to the Rotageek Platform in accordance with any timetable notified by Rotageek to the Customer or agreed by the parties from time to time.

Part 3: Support Services

1. Response and resolution

1.1       Rotageek shall determine, acting reasonably, into which severity category an issue falls. See Schedule 3 for description of severity levels.

1.2       Rotageek shall use all reasonable endeavours to resolve issues raised through the Support Services promptly.

2. Limitations on Support Services 

2.1       If the total hours spent by the personnel of Rotageek performing the Support Services during any calendar month exceed 10:

(a)        Rotageek will cease to have an obligation to provide Support Services to the Customer during the remainder of that period; and

(b)        Rotageek may agree to provide Support Services to the Customer during the remainder of that period, but the provision of those Support Services will be subject to additional Rotageek Fees.

2.2       Rotageek shall have no obligation to provide Support Services in respect of any issue caused by:

(a)        the improper use of the Service by the Customer; or

(b)        any alteration to the Service made without the prior consent of Rotageek.

3. The following additional service parameters are the responsibility of Rotageek in the ongoing support of the Product(s) and Service:

            (a) Software patching

            Rotageek will be responsible for ensuring all the Software is periodically patched to    the appropriate level.

            (b) Server and data back-up and recovery

            All servers used to provide the Service are subject to current Rotageek back-up and recovery procedures. Sufficient hardware is available to ensure continuity of service in event of total server failure with a target recovery time of 12-hours for any given server.

            (c) Server monitoring

            All servers used to provide the Service are monitored by or on behalf of Rotageek.

            (d) Scope limitations

            Not included within the scope of the support and maintenance services provided under          this Agreement are:

• support or maintenance of any product, service or equipment other than the Product(s) and the Service themselves;
• support in relation to any problem caused by user error or lack or competence;
• development or provision of functional or other enhancements or software customisation;
• data migration or conversion;
• provision of training or creation of training materials; and
• any other IT consulting services.

Provision of any of the foregoing (if available) shall be subject to a separate additional Statement of Work or separate agreement being entered into between the parties.

SCHEDULE 2

Personal Data

For the purposes of clause ‎11.2, the parties set out below a description of the personal data relating to data subjects being processed under this Agreement and further detail required pursuant to the GDPR.

1. Types of personal data

Personal details of data subject (title, first name, last name), email address, telephone number, employer, position, skill set, payroll number, holiday accrual, salary rate, geographical location, date of birth, profile image, log-in details and password.

2. Duration of processing

Until the earliest of termination of this Agreement in accordance with its terms or the date upon which processing is no longer necessary for the purposes of either party performing its respective obligations under this Agreement (to the extent applicable).

3. Nature of processing

Collection, storage, duplication, communication, electronic viewing, deletion and destruction.

4. Purpose of processing
   • Display staffing schedules to both managers and their team members and enable managers to control the team rotas;
   • Provide communication between the Customer managers and team members by text, email or push notification on the Rotageek App, regarding staff scheduling;
   • Enable Data subjects to see who else they are working with, allow them to "check-in" to their shift;
   • Enable Data subjects to check-in to their shift and to automatically check-in Data subjects by geo-location when they enter a specific geo-fence; and
   • Collect anonymous statistical information to understand aggregate trends in the market.
5. Categories of data subject

Employees, and temporary staff of Customer and its Group Members and any contractors acting as staff of Customer.

6. Additional provisions

Rotageek:

• shall be entitled to engage any of its Group Members and/or Microsoft (for the provision of data servers) as a sub-processor, and the Customer acknowledges that it consents to this;
• shall provide reasonable cooperation and assistance to the Customer in ensuring compliance with:
  • the Customer's obligations to respond to any complaint or request form any applicable data protection authority or data subjects seeking to exercise their rights under any Data Protection Legislation as they relate to this Agreement;
  • the Customer's obligations set out under Articles 32 – 36 of the GDPR to:
    • ensure the security of the processing;
    • notify the relevant supervisory authority and any data subjects, where relevant, of any personal data breach;
    • carry out any data protection impact assessments ("DPIA") on the impact of the processing on the protection of personal data; and
    • consult the relevant supervisory authority prior to any processing where a DPIA indicates that the processing would result in a high risk in the absence of measures taken by the Customer to mitigate the risk; and
  • shall make available to the Customer all information reasonably required by the Customer to demonstrate Rotageek's compliance with its obligations set out in clause ‎11 and allow and co-operate with any data protection audits and inspections conducted by the Customer or another auditor mandated by the Customer, provided no more than one such audit or inspection is conducted during any 12-month period.

SCHEDULE 3

Solution & Services

Digital Scheduler

Access Management

• Admin/manager/employee access with unique, secure username and password
• Permission templates simplify permissions by position
• Single sign on (SSO) available

Employee Management

• Employees can be created with contracted hours, leave allowance, birthday, and pay rate.
• Managers are able to tag employees to skills, positions and locations as required
• Managers can transfer staff between locations
• Integration supported with HR providers via API or flat file exchange

Scheduling

• Create and view schedules across single or multiple locations
• Access via desktops or tablets
• Schedule as far in advance as required
• Copy shifts or whole schedules across weeks
• Create shift patterns for fixed shift employees

Notifications

• Employees receive notifications with their weekly schedule, updates, and swap / leave requests
• Notifications are sent via email and push notification

Swaps Management

• Employees can transfer shifts subject to management approval
• Requests are sent to all available staff with the correct skill.

Templates

• Create and apply ideal working shift templates to schedules
• Create shift patterns by rotating employees each week

Leave Management

• Employees can view their leave balance and request leave via web or mobile app
• Managers can process leave and see other employees off at the same time
• Company-wide, location-specific or role-specific rules can be put in place to limit number of people on leave at once or block leave for specific dates

Availability

• Managers and employees can enter and edit availability
• Managers can view availability when scheduling

Mobile app

• Employee app available for Android and iOS
• Employees can view their schedule, request leave, request swaps, view available shifts for cover and check in/out

Gaps & Gap Notifications

• Easily view schedules and find cover from nearby locations or districts
• Allocate employees across multiple locations and ensure this is charged to the correct cost centre
• Send out requests for cover based on skill and availability via email and push notification for single or multiple locations

Time & Attendance

• Employees can clock in/out via web clock, mobile app or tablet via pin code
• Managers can view who has clocked in/is late/missing each day
• Geofencing can be activated to only allow clock in from location

Timesheets

• Generate a weekly timesheet based on scheduled and clocked hours
• Managers can audit and submit a weekly timesheet
• Payroll teams can see which Timesheets have not been approved

Optional 2-step timesheet approval process

Autoscheduler

Fairness

• Ranked and weighted fairness analysers such as consecutive days off, consistent start times, and weekend shift distribution (amongst many others) ensures staffing demand is met whilst respecting your employee's life outside of work.

Optimisation

• Optimised schedules based on forecasted demand, EWTD rules, fairness, ideal work pattern, skill mix, staff availability and other pre-defined company rules

Staffing Levels

• Set minimum and maximum staffing levels for each location & task to the quarter-hour.

Forecasting

Machine Learning Forecasting

• Multiple machine learning algorithms are trained to predict future labour-demand using your historic data (eg transactions, footfall, etc)
• Labour demand can be forecasted to the skill / task level

¹ On-demand support articles:  Rotageek has a rich knowledge base of how-to articles which are available to our customers at https://support.Rotageek.com.

² Phone support:  A direct phone number to our customer support team: +44 0207 117 2973 

³ Assigned Customer Success Manager:  Whilst our Customer Support team is available to handle day-to-day queries, a Customer Success Manager will be assigned who can provide guidance and additional support and preventative services.

⁴ Business review meetings:  Regularly recurring meeting to review solution usage, metrics, on-going services, support performance and solution enhancements.

⁵ Escalation management:  Non-technical case escalation, as well as root cause analysis of Critical (P1) issues, provided upon request.

⁶ Quantity of support portal accounts:  Support Portal access will allow the user to raise cases and track them in your account. You will be able to define and maintain the details of the nominated employees that can submit cases online or via phone. You will be able to view the history of all cases raised by your organisation. The Support Portal is available 24/7 and the cases will be picked up and addressed based on your Support Entitlements.

⁷ Backup:  Rotageek will provide daily full and minute-by-minute backups for your environment.

⁸ Emergency recovery to operational state:  Targeted deadline to get your environment back up to a fully operational state.

 ⁹ Initial response times:  Descriptions of severity levels are as follows: