SMART BUREAU LIMITED (SMART ROTA) END USER TERMS AND CONDITIONS
PLEASE READ CAREFULLY BEFORE ACCESSING OR USING THE SERVICES
The Services under these end user terms and conditions (the "End User Terms and Conditions") are provided to the Customer by Smart Bureau Limited, which trading name is Smart Rota.
In these End User Terms and Conditions, "Smart Rota", "we", "us", or "our" means Smart Bureau Limited, "Customer" means the person or firm who purchases the Services, and "End User", "you" and "your" means you who is employed by, under the control of, and/or authorised by the Customer to use the Services. Smart Bureau Limited is a private limited liability company incorporated and registered in England and Wales with company number 09250677 whose registered office is at 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ.
In these End User Terms and Conditions (except where the context otherwise requires), Clause headings are included for convenience only and shall not affect the interpretation of these End User Terms and Conditions. Use of the singular includes the plural and vice versa. Use of any gender includes the other genders. Any reference to a "person" includes a natural person firm, partnership, company, corporation, association, organisation, government, state, foundation and trust (in each case whether or not having separate legal personality). Any reference to a party or to the parties or their respective affiliates shall be deemed to include the party or parties hereto and their respective successors and permitted assigns and, where applicable, their respective authorised users. Any reference to an enactment, statute, statutory provision or subordinate legislation ("Legislation") shall (except where the context otherwise requires) be construed as referring to such legislation as amended and in force from time to time and to any legislation which re-enacts or consolidates (with or without modification) any such Legislation. Where in these End User Terms and Conditions you agree not to do any act or thing you also agree not to allow or suffer (including without limitation, taking all reasonable preventative measures) any other person to do that act or thing.
END USER ACCOUNT REGISTRATION
- When registering an End User Account with Smart Rota, you are required to provide Smart Rota with certain information such as your name, address, e-mail address, phone number and other registration information and to select a username and password (both together referred to hereunder as "Log In Information").
- You may change the Log In Information in the personal settings section of the Services at any time. We will open and activate your End User Account at our sole discretion.
- In the event you become aware of or reasonably suspect any breach of security, including without limitation any loss, theft, or unauthorised disclosure or use of the Log In Information, you must immediately notify Smart Rota.
- Smart Rota reserves the right to change the password linked to your End User Account without notice and if Smart Rota has reason to believe you are in breach of this Clause 1.4 to invalidate your password, and/or to suspend the supply of the Services to you.
SCOPE AND USE
- These End User Terms and Conditions govern your access and use of the Smart Rota online portal and mobile application software ("App") through which your Smart Rota activities can be managed via a user area of such portal or App (the "End User Account"), and include the right to use the Smart Rota Software (collectively, the "Services") for the sole and exclusive purpose of your own internal business purposes.
- By accessing or using the Services you agree to these End User Terms and Conditions. Only authorised End Users that have agreed to these End User Terms and Conditions, shall be entitled to use the Services.
- Your End User Account will give you access to certain features such as:
- accessing your work schedule;
- writing schedules;
- recording and tracking occurrences;
- accessing holidays and shift swaps and
- accessing staff and management requests.
- In order to use the Services, you must:
- provide your own access to the Internet, and separately ay to your third-party suppliers, any service fees associated with such access (e.g. through Wi-Fi internet or mobile broadband or other data transfer access); and
- provide all equipment necessary for you to make such connection to the Internet and to access the Services, including a computer, modem and/or mobile device as relevant ("Equipment"). You acknowledge and agree that we are not obliged to provide assistance in connection with your Equipment, including any technical or customer support to you, and that your use of the Equipment is at your own risk.
These End User Terms and Conditions shall commence on the Effective Date and shall continue, unless and until:
- the Smart Bureau Limited (Smart Rota) Business Terms and Conditions agreed between the Customer and Smart Rota expire or are terminated; or
- you stop being (i) employed by, (ii) under the control of, and/or (iii) authorised by the Customer; or
- terminated in accordance to these End User Terms and Conditions.
4 END USER OBLIGATIONS
- You shall comply with:
- these End User Terms and Conditions; and
- any appstore rules or policies applicable to your download of the App incorporated into these End User Terms and Conditions by reference.
- 4.2 You shall not use the Services, including associated computer security or backup services and software: (i) in a way that breaches any applicable Legislation, regulation or code of conduct or any licence applicable to you or that is in any way unlawful or fraudulent; (ii) to deliver, knowingly receive, upload, download, use or re-use any material which is abusive, defamatory, obscene or menacing, or in breach of any copyright, privacy or any other rights; (iii) to send or procure the sending of any chain letters or unsolicited advertising or promotional material ("spamming"); (iv) in a way that contravenes our specific instructions; (v) to propagate computer worms or viruses; (vi) to attempt to gain unauthorised entry to any site or network; or (vii) to distribute child or any other pornography or obscene or defamatory material.
- You shall not copy, reproduce, distribute, republish, download, display, post or transmit any part of the Services in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means. However, you may view the materials published on or distributed through the Services on your computer screen and print its contents on your printer for your internal business purposes, subject always to confidentiality obligations under these End User Terms and Conditions and in accordance with Smart Rota policies, requirements and/or instructions from time to time.
- You agree to make every reasonable effort to prevent unauthorised third parties from accessing the Services.
- You warrant that you are employed by, under the control of and/or authorised by the Customer to use the Services.
- You warrant to provide, or you acknowledge that you have provided, true and correct information when registering for the End User Account.
- You shall comply with all requirements, procedures, policies and regulations of any networks connected to the Services.
- You acknowledge and affirm that you are solely responsible for any content you upload and/or transmit through the Services (e.g. through your End User Account).
- You shall comply with:
- We will provide access to the Services to you at our sole discretion and subject to the Customer's continuing agreement with us and to your compliance with these End User Terms and Conditions.
- We may apply to the Services any upgrade and/or update released by us and/or our third-party licensors and made available by us and/or our third-party licensors to you from time to time. Any upgrade or update of the Services will be governed by these End User Terms and Conditions unless we state otherwise in writing.
- We are under no obligation to edit, review or modify your, the Customer's or any third party content. However, we reserve the right to remove any information or third party content at any time and without notice.
- In consideration of the Customer being subject to the Smart Bureau Limited (Smart Rota) Business Terms and Conditions and your compliance with these End User Terms and Conditions, we grant you for the duration and purposes of these End User Terms and Conditions only, a limited, royalty free, worldwide, non-assignable, revocable, non-exclusive licence to use the Services.
- You shall not:
- seek to download, modify, copy, data-mine, cache, reverse engineer, decompile, disassemble or otherwise extract data from the Smart Rota Software and/or any part thereof or access or use the Services in order to assist a third party in doing so;
- obtain or claim any ownership in any Services (or in any derivation or improvement) thereof;
- sublicense the use of the Services to any third party;
- create, write or develop any derivative software or any other software based on the Smart Rota Software and/or utilising our (or our third-party licensor(s)) proprietary or confidential information);
- sell, resell, rent, lease, loan, supply, distribute, redistribute, display, host, outsource, publish or re-publish the Services and/or any part thereof;
- without Smart Rota written prior consent, integrate the Services with any other software or application that automates any functionality provided by the Services;
- remove or modify any Smart Rota Software markings or any notice of Smart Rota's or its licensors' proprietary rights; or
- use, or otherwise commercially exploit or make the Services or materials available to any third party, except as otherwise agreed in these End User Terms and Conditions and to the extent and for the express purposes authorised by applicable law.
- All Intellectual Property Rights in the Services, which includes Smart Rota Software, are and will remain the property of Smart Rota and/or its licensors and you shall not acquire any rights, simply by using these Services, in Smart Rota Software and any information provided or works to which the information relates.
- For the purpose of these End User Terms and Conditions:
- Intellectual Property Rights means patents, rights to inventions, copyright and related rights, trademarks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets) and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world, including the right to sue for and recover damages for past infringements; and
- Smart Rota Software refers to the software owned by or licensed to Smart Rota to which Smart Rota grants you access as part of the Services, including software guidelines, and any software updates provided as part of the Services (the "Smart Rota Software").
YOUR END USER ACCOUNT – IDENTITY, PASSWORDS, AND SECURITY
- You acknowledge that the Services, like other Internet applications, are not secure and we do not guarantee the prevention or detection of any unauthorised attempts to access the Services.
- In respect of your use of the Services, you shall:
- ensure that you provide true, accurate, current and complete information in relation to the Services (and to your End User Account) as prompted by the Services, or as requested by Smart Rota at any time;
- maintain and update this information and keep it true, accurate, current and complete. If any information provided by you is untrue, inaccurate, not current or incomplete, Smart Rota has the right to suspend or terminate your End User Account and/or any functionalities thereof immediately and refuse to provide you with any and all current or future use of the Services;
- immediately notify Smart Rota at [email protected] of any fraudulent or unauthorised use of any of your Log In Information or End User Account or any other breach of security; and
- follow our reasonable instructions promptly at any time.
- You shall:
- not permit others to use your End User Account unless this is authorised by Smart Rota;
- not sell, trade, or otherwise transfer your End User Account to another party; and
- not charge anyone for access to any portion of the Services, or any information therein. To the maximum extent permitted by applicable law, you are fully responsible for all activities that occur in relation to your use of the Service, including but not limited to the use of your End User Account or the use of any services connected to the End User Account by any other third parties that have used your Log In Information.
- We will follow our archiving procedures for Data as set out in our BackUp Policy. In the event of any loss or damage to Data, your sole and exclusive remedy shall be for Smart Rota to use reasonable commercial endeavours to restore the lost or damaged Data from the latest backup of such Data maintained by Smart Rota in accordance with the archiving procedure described in our Back-Up Policy. Moreover, Smart Rota shall not be responsible for any loss, destruction, alteration or disclosure of Data caused by any third party (except those third parties sub-contracted by Smart Rota to perform services related to Data maintenance and back-up).
- For the purposes of this Clause:
- "Data Protection Legislation" means the General Data Protection Regulation 2016/679 (the "GDPR") applicable in the European Union, including the UK until any UK data protection legislation replaces the GDPR in the UK;
- "Personal Data" means any information relating to an identified or identifiable natural person. An identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
- "Process" has the meaning ascribed to it in the Data Protection Legislation; and
- "Data" means the data inputted by the Customer, End User, or Smart Rota on behalf of the Customer and/or End User for the purpose of using the Services or facilitating the Customer's and/or End User's use of the Services.
DISCLAIMER OF WARRANTIES
- Each party hereby warrants that it has the full capacity and authority to enter into these End User Terms and Conditions and to carry out its obligations herein.
- You affirm that your use of the Services is at your own risk.
- The Services are provided on an "as is" and "as available" basis.
- To the maximum extent permitted by applicable law, we expressly disclaim all warranties of any kind, whether express or implied in relation to the Services including, but not limited to, the implied warranties of merchantability, satisfactory quality, fitness for a particular purpose or ability to achieve a particular result and non-infringement.
LIMITATION OF LIABILITY
- If Smart Rota fails to comply with these End User Terms and Conditions, we shall be responsible for the loss or damage you suffer that is a foreseeable result of our breach of these End User Terms and Conditions or our negligence, but Smart Rota shall not be responsible for any loss or damage that is not foreseeable. Loss or damage is foreseeable if it is an obvious consequence of our breach or if it was contemplated by you and us on the Effective Date.
- We exclude all liability of any kind in respect of the acts or omissions of other providers of telecommunications or Internet services or for faults in or failures of their equipment, networks or systems.
- We disclaim, without limitation, all liability for back-up, identity theft or any other misuse of your identity or information.
- Smart Rota will not be liable to you in any way for failures, defects of delays in the provision of the Services or, which are caused for any of the following reasons:
- you have provided incorrect information when registering with Smart Rota and/or the Services; or
- your Equipment is not able to receive the Services.
- We only supply the Services to you for the Customer's internal business purposes. You agree not to use the Services for any commercial, business or re-sale purpose. We shall have no liability to you for any loss of profit, loss of business, business interruption, or loss of business opportunity.
- Smart Rota does not in any way exclude or limit its liability for:
- death or personal injury caused by Smart Rota's negligence; or the negligence of our employees, agents or sub-contractors; and
- fraud or fraudulent misrepresentation.
- For the purposes of this Clause 10, we include Smart Rota's and any member of its group's directors, members of staff, sub-contractors, licensors and suppliers. You acknowledge that our and any member of our group's directors, members of staff, sub-contractors, licensors, and suppliers shall have the benefit of the limits and exclusions of liability set out in this Clause in terms of the Contracts (Rights of Third Parties) Act 1999.
- This Clause 10 shall survive cancellation of these End User Terms and Conditions.
EVENT OUTSIDE OUR CONTROL
- Smart Rota will not be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these End User Terms and Conditions that is caused by an Event Outside Our Control.
- For the purposes of this Agreement, an Event Outside Our Control means any event beyond our reasonable control including but not limited to strikes, lock-outs or other industrial disputes (whether involving the workforce of Smart Rota or any other party), failure of a utility service or transport network, failure of public or private telecommunications networks act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, draught, storm or default of suppliers, sub-contractors, or you (including inadequacy or unsuitability of any instructions, electronic file or other data or materials supplied by you).
- If an Event Outside Our Control takes place that affects the performance of our obligations under these End User Terms and Conditions:
- Smart Rota will contact you as soon as reasonably possible to notify you; and
- Smart Rota's obligations under these End User Terms and Conditions will be suspended and the time for performance of our obligations will be extended for the duration of the Event Outside Our Control. Where the Event Outside Our Control affects our performance of the Services to you, we will restart the Services as soon as reasonably possible after the Event Outside Our Control is over.
- You may terminate the contract if an Event Outside Our Control takes place which has continued for more than 30 days and you no longer wish Smart Rota to provide the Services to you.
- Smart Rota may terminate these End User Terms and Conditions if the Event Outside Our Control continues for longer than 30 days in accordance with our termination rights in Clause 14.
- Any notice given to you regarding changes to our website, or other matters, shall be made via your End User Account electronic mail.
- Unless we expressly set out otherwise, you must give notices to us by post or personal service to: Smart Bureau Limited, 71-75 Shelton Street, Covent Garden, London, WC2H 9JQ with a required copy sent by email to [email protected]
13 VARIATION OF THESE END USER TERMS AND CONDITIONS
We shall be entitled to notify you of any updates and/or variations of the terms of these End User Terms and Conditions by email, via your End User Account or by requesting your consent before accessing your End User Account. You will be deemed to have accepted any modifications if you continue to use the Services and/or have clicked through the revised End User Terms and Conditions after the updated End User Terms and Conditions have been notified to you.
- You may terminate these End User Terms and Conditions at your sole discretion at any time.
- We may at our sole discretion terminate these End User Terms and Conditions and/or suspend your access to the Services, including your End User Account, immediately, in the event that:
- we are directed by any competent authority to cease the provision of the Services or any part of it;
- you make a material misstatement in the details you have supplied to Smart Rota to enable Smart Rota to provide the Services;
- you use the Services in contravention of any of the terms of these End User Terms and Conditions and/or Smart Rota believes that you have breached or acted inconsistently with these End User Terms and Conditions or that you have breached the rights of Smart Rota, the Customer or other users or third parties;
- our agreement with the Customer (the "Business Customer Terms and Conditions") or any contract with any third party who assists us in providing the Services to you expires or is terminated; or
- we become aware of any breach of third party Intellectual Property Rights by or caused by you and/or any authorised users.
EFFECTS OF TERMINATION
- On termination of these End User Terms and Conditions:
- any licence granted to you by Smart Rota or by its licensors under these End User Terms and Conditions shall immediately cease. You must immediately stop using the Services, including the Smart Rota Software and your End User Account; and
- your End User Account will be deactivated.
- The termination of these End User Terms and Conditions for whatever cause shall not affect any provision of these End User Terms and Conditions which is expressed or by implication intended to survive or operate in the event of termination of these End User Terms and Conditions.
- On termination of these End User Terms and Conditions:
Any and all information in and/or derived under and/or in connection with these End User Terms and Conditions and the use of the Services shall be kept in strict confidence at all times in accordance with our policies, requirements and/or instructions from time to time.
THIRD PARTY RIGHTS
These End User Terms and Conditions are an agreement between Smart Rota and you. No other person shall have any rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
Transfer of Rights and Obligations
- Smart Rota may at any time transfer all or any of its rights under these End User Terms and Conditions to any third party, but this will not affect your rights or Smart Rota's obligations under these End User Terms and Conditions.
- You shall not, without our prior written consent, transfer all or any of your rights or obligations under these End User Terms and Conditions.
- Due to the rapid advancement of technology, Smart Rota and its licensors reserve the right to change, suspend, remove, withdraw or disable access to any part of the Services at any time. In no event will Smart Rota be liable for making these changes to the maximum extent permitted by law.
- Smart Rota may also impose limits on the use of or access to certain features or portions of the Services, in any case and without liability, to the maximum extent permitted by applicable law.
- In the event that there is an unusual use of any of the Services, Smart Rota may suspend access to your End User Account to protect you. Where possible, we will try to contact you before we suspend your End User Account.
- These End User Terms and Conditions represent the entire agreement between the parties in relation to its subject matter and supersedes all agreements and representations made by either party, whether oral or written.
- The parties acknowledge and agree that the parties have not been induced to enter into these End User Terms and Conditions by any representation, warranty or other assurance not expressly incorporated into it and in connection with these End User Terms and Conditions the parties' only rights and remedies in relation to any representation, warranty or other assurance are for breach of these End User Terms and Conditions and that all other rights and remedies are excluded, except in the case of fraud.
- Each of the paragraphs of these Consumer Terms operates separately. If any court or relevant authority decides that any of them are unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
- If Smart Rota fails to insist that you perform any of your obligations under these End User Terms and Conditions, or if Smart Rota does not enforce its rights against you, or if Smart Rota delays in doing so, that will not mean that we have waived our rights against you and will not mean that you do not have to comply with those obligations. If Smart Rota does waive a default by you, Smart Rota will only do so in writing, and that will not mean that Smart Rota will automatically waive any later default by you.
GOVERNING LAW AND JURISDICTION
- These End User Terms and Conditions and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these End User Terms and Conditions or their subject matter or formation (including non-contractual disputes or claims). If you are a resident of Northern Ireland or Scotland, you may also bring proceedings in Northern Ireland or Scotland respectively.