Terms & Conditions

1. Definitions

 

1.1 In this Agreement, where the context so admits, the following words and expressions shall have the following meanings:

 

2. Interpretation 

 

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

1. reference to a person includes a legal person (such as a limited company) as well as a natural person;
2. clause headings are for convenience only and shall not affect the construction of this Agreement;
3. 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
4. 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.
   
   

3. Provision of service

3.1 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) as set out in the applicable Statement of Work and Schedule 3. 

3.2 Following completion of configuration and/or development of the Product(s), Rotageek shall:

1. procure that the Service is enabled for the Customer in live production use; and
2. for the remainder of the Term of this Agreement, procure the hosting of the Product(s), and support and maintain the Product(s) and Service as set out in Schedule 3.

3.3 It is the Customer's responsibility to ensure it has equipment (of appropriate specification and compatible with the Product(s) and the Service) as set out in Schedule 3 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.

3.4 The Customer acknowledges and agrees that Rotageek's provision of the support and maintenance services and any Professional Services shall be conditional upon:

1. 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
2. the Customer providing Rotageek with (or access to) Customer Data and the Customer Materials as required by an additional Statement of Work;
3. all Customer Materials being reliable, accurate and complete in all respects.

4. Grant of license and scope of authorised use

4.1 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 4.2, 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.

4.2 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:

1. the Customer's employees;
2. any contract staff who are working for the Customer; and
3. 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.

4.3 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.

4.4 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 according to the then current rate charges per authorised user as adjusted from time to time.

4.5 The Customer shall not:

1. 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);
2. copy, translate, modify, adapt or create derivative works from any Product or the Service;
3. create Internet "links" to the Service or "frame" or "mirror" any Rotageek Content on any other server or wireless or Internet-based device;
4. 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:

1. 1. 1. build a competitive product or service;
      2. build a product using similar ideas, features, functions or graphics of the Service; or
      3. copy any ideas, features, functions or graphics of the Service;

e. 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;

f. 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;

g. 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;

h. provide false identity information to gain access to or use the Service;

1. 1. forge headers or otherwise manipulate identifiers in order to disguise the origin of any Customer Data transmitted through the Service; or
   2. use any Product or the Service to:
   3. 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");
   4. impersonate any person or entity or otherwise misrepresent the Customer's relationship with any person or entity;
   5. engage in any fraudulent activity or further any fraudulent purpose;
   6. 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;
   7. "stalk" or otherwise harass another person or collect or store unauthorised personal data in relation to any individual;
   8. transmit or distribute any unsolicited or unauthorised advertising, marketing or promotional material or other form of solicitation (spam); and/or
   9. 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.

4.6 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.

5. Administrator and Authorised Users

5.1 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 16.2. 

5.2 Rotageek will establish accounts for Authorised Users, as notified to Rotageek by the Customer, with unique login credentials and passwords (“Authorised Users”). The Customer is solely responsible for determining the skill, competence, character and other attributes of all Authorised Users.

5.3 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.

5.4 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.

5.5 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"). 

5.6 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.

6. Fees, invoicing and payment

6.1 The Customer shall pay all Fees within 30 days of the date of the applicable invoice. Fees are not refundable during the Term unless pre agreed between the parties. 

6.2 The annual licence fees and any associated hosting fees are subject to annual review and increase by Rotageek upon 30 days' notice to the Customer, provided that no such increase will apply prior to the end of the Initial Term and no such increase in the annual licence fees will exceed the equivalent of the percentage increase in CPIH (Consumer Price Index Including Owner Occupiers’ Housing Costs) over the 12-month period immediately preceding the notice of increase.

6.3 The Customer shall pay undisputed fees in respect of any Professional Services as set out in the Front Sheet and any applicable Statement of Work. 

6.4 If this Customer wishes to raise a bona fide dispute over any invoiced fees, they shall notify the Rotageek in writing within 14 days of receipt of invoice. Both parties shall take reasonable steps to resolve the dispute in a prompt and fair manner within 30 days of notification of the dispute by the Customer. If the dispute remains unresolved after this period, the matter shall be referred to both parties authorised officers. If the authorised officers are unable to settle any dispute in accordance with the contract within 21 days, the parties will attempt to settle it by mediation in accordance with the Centre for Effective Dispute Resolution (CEDR) Model Mediation Procedure (the model procedure).

6.5 If any undisputed 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.

6.6 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.

6.7 Invoices are payable, in full, upon delivery and without deduction, set off or withholding of any kind. 

7. Warranties

7.1 Rotageek warrants that:

1. 1. it has the right to enter into this Agreement and to provide the Service(s) as contemplated by this Agreement;
   2. the Product(s) and Service(s) 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 www.rotageek.com; and
   3. the support and maintenance services and Professional Services shall be performed with reasonable care and skill.

7.2 If any of the warranties in clause 7 are 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 10.1, have no other obligation or liability in relation to such breach.

7.3 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 the Customer Data.

7.4 Except as expressly set out in this Agreement and subject only to clause 10.1, 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.

7.5 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.

7.6 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.

 

8. Intellectual property rights

8.1 Nothing in this Agreement shall cause the ownership of any Intellectual Property Rights belonging to one party to be transferred to the other.

8.2 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.

8.3 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.

8.4 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.

9. Indemnities 

9.1 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 UK Intellectual Property Rights of any third party.

9.2 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 9.1 then Rotageek shall, at its sole option, and at its own cost and expense, make all reasonable efforts, as soon as reasonably possible to:

1. 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
2. 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.

9.3 Rotageek shall indemnify the Customer and keep the Customer indemnified from and against all direct losses, damages, liabilities, costs and expenses (including reasonable legal costs) which are incurred and/or suffered by the Customer arising out of or in connection with any breach by Rotageek (including any sub processors, agents, employees or consultants used by Rotageek) of applicable Data Protection Legislation and/or the data processing addendum attached to this Agreement, subject always to the limits on liability set out in clause 10.

9.4 Customer shall indemnify and hold Rotageek harmless from and against any claim by a third party as a result of the Customer’s omissions or negligent 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 and including where the Customer has failed to obtain appropriate consent of the data owner to enter the specific Customer Data into the Product or to obtain the express consent of the data owner to use Rotageek and its sub-processors as sub-processors of the Customer Data.

9.5 The indemnities in clauses 9.1, 9.3 and 9.4 shall be conditional upon:

1. 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");
2. 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;
3. The indemnifying party being, at any time from notification in accordance with clause 9.5(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); 
4. 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.
   
   

10. Exclusions and limitations

10.1 Nothing in this Agreement limits or excludes either party's liability:

1. 1. for death or personal injury caused by its negligence;
   2. for fraudulent misrepresentation or for any other fraudulent act or omission;
   3. to pay sums properly due and owing to the other in the normal course of performance of this Agreement; or
   4. for any other liability which may not lawfully be excluded or limited.

10.2 Subject to clause 10.1, 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.

10.3 Subject to clause 10.1, 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:

1. 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;
2. 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;
3. 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;
4. the compliance by Rotageek with any design, specification or instructions provided by the Customer or on the Customer's behalf;
5. any Customer Data and/or Customer Materials and any failure to keep Customer Data up-to-date; or
6. 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.

10.4 Subject to clauses 10.1 and 10.2, 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 of a breach of  Clause 12 (Data Protection) a sum not exceeding £500,000; (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. 

 

11. Confidentiality 

 

11.1 Subject to clause 11.2, each party shall:

1. keep confidential all Confidential Information of the other party which it receives in connection with this Agreement;
2. 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;
3. only use such Confidential Information as strictly necessary for the performance of, or exercise of its rights under, this Agreement;
4. 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 11); and
5. 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.

11.2 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).

11.3 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.

11.4 The Customer agrees to collaborate with Rotageek to issue a case study within 12 months of the Effective Date to highlight the project scope, goals, implementation process, and business outcomes achieved by using the Rotageek Solution and Support Services, as described on the Front Sheet and Schedules 3, 4 and 5.

11.5 The Customer agrees to be a reference for Rotageek with prospective Customers and investors, never to exceed 1 time per month.

12. Data protection

12.1 Both parties will comply with all applicable requirements of Applicable Data Protection Laws. This 12 is in addition to, and does not relieve, remove or replace, a party's obligations or rights under Applicable Data Protection Laws. 

12.2 The parties have determined that, for the purposes of Applicable Data Protection Laws Rotageek shall process the personal data set out in Schedule 2, as a processor on behalf of the Customer; and

12.3 Should the determination in 12.3 change, then each party shall work together in good faith to make any changes which are necessary to this 12 or the related schedules.

12.4 By entering into this agreement, the Customer consents to (and shall procure all required consents, from its personnel, representatives and agents, in respect of) all actions taken by Rotageek in connection with the processing of Rotageek Personal Data, provided these are in compliance with the then-current version of Rotageek's privacy policy available at https://www.rotageek.com/privacy-policy (Privacy Policy). In the event of any inconsistency or conflict between the terms of the Privacy Policy and this Agreement, the Privacy Policy will take precedence.

12.5 Without prejudice to the generality of 12.2, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Rotageek Personal Data and Customer Personal Data to Rotageek for the Term and purposes of this Agreement.

12.6 In relation to the Customer Personal Data, Schedule 2 sets out the scope, nature and purpose of processing by Rotageek, the duration of the processing and the types of personal data and categories of data subject.

12.7 Without prejudice to the generality of 12.2, Rotageek shall, in relation to Customer Personal Data:

1. process that Customer Personal Data only on the documented instructions of the Customer, which shall be to process the Customer Personal Data for the purposes set out in Schedule 2, unless Rotageek is required by Applicable Laws to otherwise process that Customer Personal Data. Where Rotageek is relying on Applicable Laws as the basis for processing Customer Processor Data, Rotageek shall notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit Rotageek from so notifying the Customer on important grounds of public interest. Rotageek shall inform the Customer if, in the opinion of Rotageek, the instructions of the Customer infringe Applicable Data Protection Legislation;
2. implement technical and organisational measures set out in Schedule 2 to protect against unauthorised or unlawful processing of Customer Personal Data and against accidental loss or destruction of, or damage to, Customer Personal Data, which the Customer has reviewed and confirms are appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures; 
3. ensure that any personnel engaged and authorised by Rotageek to process Customer Personal Data have committed themselves to confidentiality or are under an appropriate statutory or common law obligation of confidentiality; 
4. assist the Customer insofar as this is possible (taking into account the nature of the processing and the information available to Rotageek), and at the Customer's cost and written request, in responding to any request from a data subject and in ensuring the Customer's compliance with its obligations under Applicable Data Protection Laws with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
5. notify the Customer without undue delay on becoming aware of a personal data breach involving the Customer Personal Data;
6. at the written direction of the Customer, delete or return Customer Personal Data and copies thereof to the Customer on termination of the agreement unless Rotageek is required by Applicable Law to continue to process that Customer Personal Data. For the purposes of this 11.8(f) Customer Personal Data shall be considered deleted where it is put beyond further use by Rotageek; and
7. maintain records to demonstrate its compliance with this 12.

12.8 The Customer hereby provides its prior, general authorisation for Rotageek to:

1. appoint processors to process the Customer Personal Data, provided that Rotageek:

1. 1. shall ensure that the terms on which it appoints such processors comply with Applicable Data Protection Laws, and are consistent with the obligations imposed on Rotageek in this clause 15;
   2. shall remain responsible for the acts and omission of any such processor as if they were the acts and omissions of Rotageek; and
   3. shall inform the Customer of any intended changes concerning the addition or replacement of the processors, thereby giving the Customer the opportunity to object to such changes provided that if the Customer objects to the changes and cannot demonstrate, to 'Rotageek’s reasonable satisfaction, that the objection is due to an actual or likely breach of Applicable Data Protection Law, the Customer shall indemnify Rotageek for any losses, damages, costs (including legal fees) and expenses suffered by Rotageek in accommodating the objection.

b. transfer Customer Personal Data outside of the UK or EU as required for the Purpose, provided that Rotageek shall ensure that all such transfers are effected in accordance with Applicable Data Protection Laws. For these purposes, the Customer shall promptly comply with any reasonable request of Rotageek, including any request to enter into standard data protection clauses adopted by the EU Commission from time to time (where the EU GDPR applies to the transfer) or adopted by the Commissioner from time to time (where the UK GDPR applies to the transfer).

13. Term and termination

13.1 This Agreement shall commence on the Effective Date and continue through to the Initial Term and Renewal terms unless terminated in accordance herein.

13.2 Upon the expiry of the Initial Term, the Agreement shall automatically renew into a Renewal Term, unless the Agreement has been terminated upon 90 days’ written notice to the other Party to coincide with the anniversary of the Effective Date.  Failure to give such notice shall mean that the Renewal Term has commenced and the notice shall expire on the following anniversary of the Effective Date.  

13.3 Each Renewal Term shall automatically commence unless terminated in accordance with clause 13.2 above and last for a period of 12 months. 

13.4 Either party may terminate this Agreement by giving the other written notice if:

1. the other materially breaches any term of this Agreement and it is not possible to remedy that breach;
2. 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;
3. 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.

13.5 For the purposes of this clause 13.5, 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.

13.6 Without prejudice to clauses 13.1 to 13.4, 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:

1. any invoiced amount (not then-currently being disputed in good faith) is outstanding beyond the due date for payment;
2. any provision of clause 3.4 is breached; and/or
3. 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).
   
   

14. Consequences of termination 

14.1 Upon termination of this Agreement for any reason:

1. the Customer shall immediately cease to access, and discontinue all use of, the Product(s) and Service;
2. all amounts payable to Rotageek by the Customer shall become immediately due and owing. For the avoidance of doubt, no refund of fees paid in advance shall be due in respect of any unexpired portion of the then-current Term; and
3. 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.
4. The termination of this Agreement for any reason will not affect:
5. any accrued rights or liabilities which either party may have by the time termination takes effect; or
6. 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 (Definitions), , 8 (Intellectual Property Rights), 9 (Indemnities) 10, (Exclusions and Limitations) 11 (Confidentiality); 12 (Data protection) 14 (Consequences of Termination) and 16 (General) shall survive termination of this Agreement.

15. Force majeure

15.1 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:

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

16. General

16.1 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.

16.2 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 email or by hand via 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:

1. if sent by hand, when delivered; and
2. 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); and
3. if sent by email, once acknowledged via email by the receiver. 

16.3 Unless the parties expressly agree otherwise in writing, if a party:

1. fails to exercise or delays exercising or only exercises partially any right or remedy provided under this Agreement or by law; or
2. 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.

16.4 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.

16.5 All variations to this Agreement must be agreed, set out in writing and signed on behalf of both parties before they take effect.

16.6 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.

16.7 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.

16.8 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.

16.9 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 16.9 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.

16.10 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

Overview

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

Part 1:  Hosting 

1. Hosting

1.1 Rotageek is a modern software-as-service (SaaS) solution hosted on Microsoft Azure. We host our services in enterprise-level data centres based in North Europe, West Europe, and the United Kingdom with the ability to add additional locations to serve the requirements and needs of our clients. This allows the solution to scale based on concurrent users without degrading the service.

2. Data security

2.1 We perform annual penetration testing, including monthly vulnerability scanning. Alongside this, we are certified to ISO 27001, 9001 and Cyber Essentials standards. We are committed to implementing and maintaining technical and organisational measures to protect customer data against accidental or unlawful destruction, loss, alteration, unauthorised disclosure or access. 

2.2 Rotageek uses encryption to protect data in transit and at rest. All data transferred to and from Rotageek servers are sent securely via HTTPS and SSL protocols with Transport Layer Security (TLS 1.2). Rotageek employs field level deterministic and randomised encryption for personally identifiable information. We use advanced encryption algorithms at both the protocol and table level to ensure end-to-end data integrity. 

 

Part 2:  Maintenance Services

3. Introduction

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

4. Updates

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

1. 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;

2. 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; 

3. 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.

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

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

2. Server and data back-up and recovery; 

3. 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; 

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

5. Scheduled maintenance includes any scheduled work by Rotageek and/or Rotageek’s subprocessors which may result in downtime. Rotageek will use reasonable endeavours to ensure emergency maintenance, which is not scheduled maintenance, does not occur in critical periods as agreed in writing with the Customer. Where possible, and in any event when it is Rotageek’s scheduled maintenance, Rotageek will communicate scheduled maintenance at least 2 weeks in advance to allow wider communication to all affected users;

6. Rotageek will use reasonable endeavours to ensure emergency maintenance, which is not scheduled maintenance, does not occur in critical periods as agreed in writing with the Customer. Whenever possible, Rotageek will give at least 5 working days’ notice of any emergency maintenance.

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

1. support or maintenance of any product, service or equipment other than the Product(s) and the Service themselves;
2. support in relation to any problem caused by user error or lack or competence;
3. development or provision of functional or other enhancements or software customisation;
4. data migration or conversion;
5. provision of training or creation of training materials; and
6. 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.

 

Part 3:  Service Availability  

5. Introduction to availability SLA

5.1 This Part 3 of Schedule 1 sets out Rotageek's availability commitments relating to the Service.

5.2 "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.

 

6. Availability

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

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

6.3 Subject to paragraph 6.1, 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.

7. Service Credits

7.1 In respect of each calendar month during which the Service uptime is less than the commitment specified in paragraph 6.1, the Customer shall earn service credits in accordance with the provisions of paragraph 7.2.

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

 

7.3 Service credits shall be the sole remedy of the Customer in relation to any failure by Rotageek to meet the uptime guarantee in paragraph 6.1 of Part 3.

7.4 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.

8. Exceptions

8.1 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 paragraph 6.1 of Part 3:

1. a Force Majeure Event;
2. a fault or failure of the internet or any public telecommunications network;
3. a fault or failure of the Customer’s computer systems or networks;
4. any breach by the Customer of the Agreement; or
5. scheduled maintenance carried out in accordance with the Agreement.

SCHEDULE 2

Personal Data

For the purposes of clause 15.1, 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( “Purpose”)

1. Display staffing schedules to both managers and their team members and enable managers to control the team rotas;
2. Provide communication between the Customer managers and team members by text, email or push notification on the Rotageek App, regarding staff scheduling;
3. Enable Data subjects to see who else they are working with, allow them to "check-in" to their shift;
4. 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
5. 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

6.1 Rotageek shall not engage a Sub-Processor for carrying out any processing activities in respect of this Agreement without Customer’s specific prior written authorisation. If Customer gives its consent, Rotageek shall, prior to any processing of the Protected Data by the Sub-Processor, comply with its obligations set out in Schedule 2 to this Agreement.

6.2 Rotageek shall be entitled to engage any of its Group Members and/or Microsoft (for the provision of data servers) as a sub-processor, in addition to subprocessors listed on Rotageek’s website (www.rotageek.com/terms/sub-processors), and the Customer acknowledges that it consents to this.

6.3 Rotageek shall provide reasonable cooperation and assistance to the Customer in ensuring compliance with:

1. 1. 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;
   2. the Customer's obligations set out under Articles 32 – 36 of the GDPR to:

1. 1. 1. ensure the security of the processing;

      2. notify the relevant supervisory authority and any data subjects, where relevant, of any personal data breach;

      3. carry out any data protection impact assessments ("DPIA") on the impact of the processing on the protection of personal data; and

      4. 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.

6.4 Rotageek 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 12 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.

7. Conditions for sub-processing

7.1 Insofar as the Customer has not consented herein to the appointment of a sub processor as defined in Data Protection Legislation, if Rotageek seeks and Customer gives its consent, such consent not to be unreasonably withheld or delayed, for Rotageek to engage with an additional  subprocessor, Rotageek shall (prior to any processing of the Customer Data by the additional sub-processor) appoint the additional sub-processor under a binding written contract, with enforceable data protection obligations on the same terms as apply to Rotageek (“Processor Contract”). 

7.2 Rotageeek shall promptly, upon request by Customer, provide the relevant details, subject to any obligations of confidentiality thereunder, of any such Processor Contract to Customer. 

7.3 Rotageek shall remain fully liable to Customer for the performance of each Sub-Processor’s obligations. The acts or omissions of any Sub-Processor or Sub-Processor personnel in connection with the processing of Protected Data shall be deemed to be the act or omission of Rotageek.

 

SCHEDULE 3

Solution

 

The Rotageek solution is continually being developed to deliver additional value as the needs of Customers and the environment in which they operate changes. New features are often released and made available to Customers immediately. Substantial new features are often hidden behind feature flags and permissions to allow a planned release to users. Although rare, Rotageek may change or discontinue features within the solution. Rotageek makes reasonable efforts to notify Customers about all significant changes to the solution in advance. 

 

SCHEDULE 4

Support Services

1. Response and resolution

1.1 Rotageek shall determine, acting reasonably, into which severity category an issue falls.

 

1.2 Rotageek shall use all reasonable endeavours to promptly resolve issues.

1.3 The following support services standards will apply based on the Solution & Support Services referenced on the Front Sheet:

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.

 

2. Limitations on Support Services

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

1. the improper use of the Service by the Customer; or
2. any alteration to the Service made without the prior consent of Rotageek.

3.Additional Services

3.1 ln the event additional services are requested by the Customer over and above the agreed Services covered by this Agreement, the rate card set out below will apply.  The rate card is accurate as of the Effective Date, but prices will change each year in accordance with inflation.  All prices listed in the rate card are exclusive of VAT. 

 

3.2 Upon identifying the need for additional services, Rotageek will provide a quotation for the additional services for the Customer’s approval.