Employer Terms & Conditions
(“we”, “us” or “our”)
Welcome to Broadstone Engage Limited of Neo Building, 9 Charlotte Street, Manchester, Greater Manchester, England, M1 4ET(company registration number 10396842), referred to as “Broadstone” or “the Company” provides an online platform to businesses who require staff employed on a permanent basis and temporary workers utilised on a short term basis, (“Company”) and individuals who are 18 years and older and are willing to contract on a temporary or short term basis to fulfil staffing shortages (“Users”) can connect with each other. These Terms of Service preside over the use of the services offered by Broadstone on the web application (accessed via the URL https://broadstoneapp.com) or mobile applications (iOS and Android). Such services, website and mobile applications together are hereinafter referred to as the “Service”.
This Agreement contains our confidential and sensitive information and is being disclosed in confidence. None of this Agreement may be reproduced or further disclosed without our prior written consent, except to the extent required by law or to take professional advice from a professional adviser who is under strict duties to keep this Agreement confidential.
In this Agreement:
1.1 the following terms shall have the following meanings unless the context otherwise requires:
“Account”: the account allocated to you by us for you to access information and functionality relating to the Services (including listing of security roles for Users to fill) and related services on the Website;
“Additional Services”: the provision of vetting services, and any additional vetting requirements that you may require;
“Additional Services Fee”: the fee payable by you to us for any Additional Services;
“Agreement”: these Terms and Conditions together with the relevant Subscription Document and any document referred to in these Terms and Conditions or the Subscription Document;
“Authorised Employees”: those allocated employees of the Company who will have access to your Account and who will be able to receive notifications regarding particular Roles;
“Breach of Duty”: the breach of any: (i) obligation arising from the express or implied terms of a contract to take reasonable care or exercise reasonable skill in the performance of the contract; or (ii) common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty);
“Business Day”: any day other than: (i) a Saturday, (ii) a Sunday or (iii) any day when the clearing banks in the City of London are not physically open for business;
“Company”, “you” or “your”: the recipient of services from us under this Agreement, whose details may be as set out in the Subscription Document;
“Confidential Information”: any information in any form or medium obtained by or on behalf of one Party from or on behalf of the other Party in relation to this Agreement which is expressly marked as confidential or which a reasonable person would reasonably consider to be confidential, whether disclosed or obtained before, on or after the date of this Agreement, together with any reproductions of such information or any part of such information;
“Content”: any information you provide to us to list on the Service relating to Roles and your Profile;
“Contract”: the legally binding contract (whether a contract of service or a contract for services) between you and the relevant User which you and the User will be bound by when the User offers via the User App to undertake the relevant Engagement and you accept such offer via the Service;
“Data Controller”: has the meaning given to it by GDPR;
“Data Processor”: has the meaning given to it by GDPR;
“Data Protection Legislation”: all legislation and regulations relating to the protection of Personal Data and/or privacy including the Data Protection Act 1998 (“DPA”) to the extent that it applies, the General Data Protection Regulations (Regulation (EU) 2016/679) which comes into force on 28 May 2018 (the “GDPR”), the Privacy and Electronic Communications (EC Directive) Regulations 2003, and all guidance and codes of practice issued by applicable supervisory authorities in connection
therewith and any equivalent legislation amending or replacing the GDPR or the DPA;
“Default Terms”: has the meaning given to it in Clause 8.4;
“Engagement”: the engagement, employment or use of the User by you or (where applicable) any third party, whether on a permanent or a temporary basis under a contract of service or
for services, under an agency, licence, franchise, or partnership agreement, directly or through a limited company of which the User is an officer or employee or otherwise;
“Extended Term”: has the meaning given to it in Clause 3;
“Fees”: the fees payable by you to us as set out in the Subscription Document for use of the Services and any Additional Services Fee or Role Extension Fee if Applicable;
“Initial Right to Work Checks”: the relevant licence checks for User eligibility as set out in the Subscription Document;
“Initial Term”: has the meaning given to it in Clause 3;
“Intellectual Property Rights”: all intellectual and industrial property rights of any nature anywhere in the world, including copyright, database rights, design rights, topography rights, registered designs, design rights, trade mark rights, service mark rights, domain name rights, patents, rights to inventions, trade secrets, rights in know-how, and any other rights of a similar nature, whether or not any of the same are capable of protection by registration and whether registered or not, and applications for registration of any of the foregoing and the right to apply for any of them, anywhere in the world;
“Liability”: liability in or for breach of contract, Breach of Duty, torts (including negligence and intentional torts), deliberate breach (including deliberate personal repudiatory breach), misrepresentation, restitution or any other cause of action whatsoever relating to or arising under or in connection with this Agreement, including liability expressly provided for under this Agreement or arising by reason of the invalidity or unenforceability of any term of this Agreement (and, for the purposes of this definition, all references to “this Agreement” shall be deemed to include any collateral contract);
“Party”: either us or you, and “Parties” shall mean both of us and you;
“Permanent Roles”: the Engagement of the User by you on a permanent basis for an undetermined period of time;
“Personal Data”: has the meaning given to it by GDPR;
“Profile”: the profile page we will create for you on the Service where you can showcase information about your business to a User, and list information about Roles;
“Registration Acceptance”: the email to you from us accepting the Subscription Document;
“Report”: the vetting report and any other documents provided by us to you in relation to the Additional Services;
“Roles”: the roles which are to be listed by you for Permanent Roles and/or Temporary Roles in the security sector;
Role Extension Fee; the fee payable by you to us as set out in the Subscription Document;
“Service”: the service provided by us of:
- listing Roles on the Website;
- providing access to User Profiles; and
- providing a live chat function enabling you to communicate with Users directly if applicable.
“Stripe”: the payment company Stripe Payments UK Ltd, company number 08480771;
“Stripe Payment Services”: the payment services provided by Stripe which are subject to the terms and conditions to be found at https://stripe.com/gb/connect-account/legal;
“Subscription Document”: the written document you provide to us containing the specific information relating to the particular services to be supplied by us to you;
“Temporary Roles”: means the Engagement of the User by you for a fixed term or temporary period of time;
“Timesheets”: the form required to record the number of hours worked by a User;
“User”: an individual that downloads the User App, by which that individual is able to view job roles from Companies that have subscribed with us to make such services available through the User App;
“User App”: the mobile application software developed and created by us, to be used by users to view job roles and related services which are listed as available by security business that have subscribed with us to make such services available through that mobile application software;
“User Data”: has the meaning given to it in Clause 16.1;
“User Profile”: the profile page created by the User which we contain certain information regarding the User and which, subject to certain conditions, we may can make accessible for you to view; and
“Website”: our website hosted at [INSERT] where you will be able to access the Service;
1.2 references to “Clauses” are to clauses of these Terms and Conditions;
1.3 the headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
1.4 a “person”includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
1.5 a reference to a Party includes its personal representatives, successors or permitted assigns;
1.6 words imparting the singular shall include the plural and vice versa. Words imparting a gender shall include the other gender and the neutral and references to persons shall include an individual, company, corporation, firm, partnership, trust, association, government or local authority department or other authority or body (whether corporate or unincorporated);
1.7 a reference to a statute or statutory provision is a reference to such statute or statutory provision as amended or re-enacted. A reference to a statute or statutory provision includes any subordinate legislation made under that statute or statutory provision, as amended or re-enacted;
1.8 any phrase introduced by the terms “including”, “include”, “in particular”or any similar expression, shall be construed as illustrative and shall not limit the sense of the words preceding or following those terms; and
1.9 a reference to “writing”or “written” includes in electronic form and similar means of communication (except under Clause 19).
2.1 The terms of this Agreement apply to the exclusion of any terms and conditions submitted, proposed or stipulated by you in whatever form and at whatever time. This Agreement applies to the Service.
2.2 Save as expressly provided in this Agreement, this Agreement shall operate to the entire exclusion of any other agreement, understanding or arrangement of any kind between the Parties preceding the date of this Agreement and in any way relating to the subject matter of this Agreement and to the exclusion of any representations not expressly stated in this Agreement except for any fraudulent misrepresentations or any misrepresentation as to a fundamental matter. Each of the Parties acknowledges that it has not entered into this Agreement based on any representation that is not expressly incorporated into this Agreement.
2.3 This Agreement constitutes the whole agreement and understanding of the Parties as to the subject matter of this Agreement and there are no provisions, terms, conditions or obligations, whether oral or written, express or implied, other than those contained or referred to in this Agreement.
2.4 Any Subscription Document provided by you to us must be in the form we require from time to time. This Agreement shall be legally formed and the Parties shall be legally bound when we have received a Subscription Document that has been submitted by you to us (and if applicable by signed by an authorised signatory of you). Submission by you to us of a Subscription Document shall be deemed to be an offer by you to be granted access to the Service, subject to the provisions of this Agreement, and our counter-signatures on, or other acceptance of, the relevant Subscription Document shall be considered acceptance of such offer, but the requirements for us to perform any of our obligations under this Agreement shall be conditional upon our receipt from you of any advance payment as required under this Agreement.
2.5 If you provide to us a purchase order for use of the Service, that order (and any terms and conditions attached or referred to in it) shall be purely for your administrative purposes and shall not form part of this Agreement.
2.6 In the event of a conflict between these Terms and Conditions and the Subscription Document, then the Subscription Document shall prevail over these Terms and Conditions.
This Agreement shall commence on the date on which this Agreement is entered into under Clause 2.4 and, unless terminated earlier pursuant to the termination provisions of this Agreement, shall continue for one year (“Initial Term”) and shall automatically extend for one year (“Extended Term”) at the end of the Initial Term and at the end of each Extended Term.
4. The Service
4.1 We shall:
4.1.1 make available the Service to you; and
4.1.2 list the Roles on the Service using the information and Content provided to us by you, and we shall list such Content in a way that we, at our absolute discretion consider appropriate.
4.2 We warrant that:
4.2.1 we shall use our reasonable skill and care in providing the Service;
4.2.2 we have all necessary rights, permissions and consents to enter into, and perform our obligations under, this Agreement; and
4.2.3 we shall comply with all Applicable laws, statutes, regulations and bye-laws in relation to the exercise of our rights and performance of our obligations under this Agreement.
4.3 If, for any reason, we choose to ask you to approve the way in which we propose to list the Content on the Website, you shall not unreasonably withhold or delay such approval.
4.4 We shall make available the Service using information and criteria supplied by you. It is your responsibility to provide accurate and updated information.
4.5 We reserve the right and have absolute discretion, but not an obligation, to remove, screen or edit any Content that you provide to us to list on the Website that breaches this Agreement or is otherwise objectionable. Without prejudice to any other provision of this Agreement, we reserve the right to refuse to list Content or to immediately remove listed Content.
4.6 We may, at our absolute discretion, from time to time either host the Service on our own servers or use third party suppliers to do so in whole or in part. You acknowledge that we may from time to time without prior notice and without the need for prior agreement provide reasonable additional obligations or requirements or reasonably restrict your rights due to the requirements of the third party suppliers.
4.7 You acknowledge that we cannot guarantee uninterrupted, timely or error-free access to the Service due to events beyond our control (including operation of public and private networks by Internet service providers, telecoms providers and third parties), and we may also need to carry out maintenance (whether planned or unplanned, and routine or not) from time to time on the Service; however, we shall use our reasonable endeavours to minimise downtime of the Service. Subject to us having used such reasonable endeavours, we do not warrant that the provision of the Service to you will be uninterrupted or error-free.
4.8 We reserve the right at our absolute discretion to make changes to the Service at any time.
4.9 We do not warrant that the Service or any Additional Service will meet your individual needs. Except for any matter upon which we specifically agree in writing with you to advise or do, we shall not be responsible or have any Liability (subject to Clause 2) for advising on, or failing to advise on, or doing, or failing to do, anything else.
4.10 We do not guarantee that a User will accept Roles available through the Website. Except as expressly stipulated in this Agreement, we shall not be responsible or have any Liability (subject to Clause 2) for providing or achieving any particular results or outcomes or within a particular time.
4.11 We retain the right to, if we consider it appropriate:
4.11.1 immediately halt the posting of any Roles;
4.11.2 prevent or restrict access to the Service; and/or
4.11.3 take any other action to preserve and protect the marketplace and/or to restrict access to or availability of or remove any objectionable material, feedback, ratings, inaccurate listings, inappropriately categorised items, unlawful items or items prohibited for listing on the Website under this Agreement.
4.12 Except where expressly provided for within this Agreement, we exclude all conditions, warranties, terms and obligations, whether express or implied by statute, common law or otherwise, to the fullest extent permitted by law in respect of the Service, the Website, the Account and our obligations under this Agreement.
5. Additional Services
5.1 We may also make available to you Additional Services from time to time. The availability of Additional Services will be at our absolute discretion and may require additional approvals, verifications or conditions to be complied with before you are permitted to access them.
5.2 We will use a third-party supplier to assist us in providing the Additional Services and creating a Report for you, and you acknowledge that such services will be subject to the third party supplier’s terms and conditions, details of which can be found in the Subscription Document.
5.3 In relation to the Report:
5.3.1 we and our licensors shall retain ownership of all Intellectual Property Rights in the Report;
5.3.2 we grant to you or shall procure the direct grant to you of, a fully paid-up, worldwide, non-exclusive, royalty-free licence during the term of this Agreement to use the Report for the purpose of receiving and using the Service and the Report in your business; and
5.3.3 you shall not sub-license, assign or otherwise transfer the rights granted in Clause 3.2.
5.4 If you require an updated version of the Report we can provide this to you for an additional fee, however you acknowledge that we retain all Intellectual Property Rights in any version of the Report.
6. Website and Account
6.1 We shall allocate to you the Account for optimised use of the Service. The Account may also allow you to access information such as your Profile, and can be used to communicate with a User.
6.2 You may allocate an Authorised Employee access to the Account as set out in the Subscription Document, details of which may be updated from time to time by providing written notice to us.
6.3 You may access the Account and the Website only with a browser that is compatible with the Service, including any security features that are part of the Service.
6.4 In order for us to allocate to you access to the Account, you shall provide such information as we may require from time to time.
6.5 Once you have been allocated access to the Account, you will be asked to create a username for, and allocate a password to, such access. You must keep the password confidential and immediately inform us if any unauthorised third party becomes aware of that password or if there is any unauthorised use of the Account or any breach of security known to you. You agree that any person to whom your username or password is disclosed is authorised to act as your agent for the purposes of using (and/or transacting via) the Service. You are entirely responsible if you do not maintain the confidentiality of your password.
6.6 Once you have access to your Account, you may update your Profile and Role details by accessing your Account through the Website.
6.7 You agree to notify us immediately of any changes which are relevant to your Account by informing us through the Website where possible or otherwise by telephoning us on 0161 457 7028 or emailing us at email@example.com.
6.8 We reserve the right to prevent you using the Service.
7. Role Conditions
Conditions for posting a Role
7.1 When posting a Role, you must follow the instructions on the Website as to how to post a Role and for making changes to the Role before you submit it to appear on the Service.
7.2 When you post a Role on the Service, we shall send you a notification through the Website.
7.3 In order to post a Role on the Website, the following conditions shall apply:
7.3.1 we do not accept businesses onto the Service whose role offers are not the real role being offered and the role is materially different to its description;
7.3.2 we do not accept businesses onto the Service whose commercial activity revolves around sex, tarot, gambling, personal relationships or weapons;
7.3.3 no duplicate Roles are accepted. It is considered that a Role is a duplicate when salary, location and position coincide;
7.3.4 you cannot send links to a User to run on a different website, mobile application or any platform other than the Service. If this happens, we will close your Account;
7.3.5 Roles that discriminate by gender, race or disability, or which are otherwise illegal (whether due to the nature of the qualifications required for the role or otherwise) are not allowed and may lead to proceedings against you. If we consider that a Role may be discriminatory or illegal, we may, at our discretion, edit or delete the Role and you shall not be entitled to any refund of amounts paid or pending regarding the publication of such Role. We shall have no Liability (subject to Clause 14.2) to you or to any third party (including any User) for any damages resulting from our publication of any Role which is untrue, misleading, discriminatory, illegal or which in any other way breaches the requirements of this Agreement or any other terms and conditions applicable to the Services.
Response to Role offers
7.4 A User may either apply for an interview, contact your directly via our live chat function, or accept a role by selecting the appropriate button on the User App. You acknowledge that we do not guarantee any response to Roles posted on the Service, or that the answers given by the User are from people qualified for the position advertised. You further acknowledge that we shall have no Liability (subject to Clause 2), in relation to such contractual relationship or if a User accepts a Role or a Contract and either cancels or withdraws before the commencement of the Engagement, or fails to turn up on commencement of the Engagement or fails to complete the Engagement.
7.5 You acknowledge and agree that when an Engagement is entered into, you become the employer or engager of the User.
7.6 In relation to any interview, selection or interaction with any User, you agree that you will not directly or indirectly discriminate against any User because of or for a reason related to sex, race, religion or belief, disability, age, maternity, gender reassignment, or sexual orientation.
7.7 Once a Role is accepted by a User, we will carry out any Initial Right to Work Checks for Temporary Roles. However, it shall be your responsibility to satisfy yourself of the suitability of the User, and you are responsible for evaluating any references provided by the User and for verifying that the User has the following:
7.7.1 the required experience, training, qualifications, licences, satisfactory DBS check and any authorisation which may be required by law or by any professional body;
7.7.2 such other permission to work as may be required; and/or
7.7.3 the relevant qualifications or permission required by the law of the country in which the User is engaged to work.
7.8 You acknowledge that it shall be your responsibility to satisfy yourself of the suitability of the User for a Permanent Role, including checking the required experience, training, qualifications, licences, satisfactory DBS check and any authorisation which may be required by law or by any professional body for a User for a Permanent Role. You may purchase the Additional Services to assist you with this.
7.9 You acknowledge that it shall be your responsibility to ensure that a User has a valid and up to date SIA licence (if applicable) before the commencement of and during the Engagement. Where a User’s SIA licence is revoked during an Engagement, you acknowledge that you will still have to pay the User for their time to that point.
7.10 You agree that any checks we carry out in relation to a User’s right to work in the United Kingdom (or any other country in which you require the User to work) must be verified by you on commencement of the Engagement (in accordance with the relevant statutory provisions in force from time to time in such jurisdiction governing illegal working) and we shall have no Liability (subject to Clause 14.2) in connection with any loss, damage or penalty that you may suffer or incur in relation to any User not having the right to work in the UK or any other country and/or in relation to the relevant right to work checks not having been properly carried out in relation to any User.
7.11 During the term of the Engagement, in relation to a Temporary Role a User will submit their Timesheets via the User App, which you will have access to via the Website. It is your responsibility to ensure that each Timesheet is correct, and you shall have the right to either accept, reject, or make any amendments to a Timesheet if in your reasonable opinion it is incorrect. If you fail to accept, reject or amend a Timesheet by 6pm on the first Monday after the Engagement, that Timesheet will be deemed accepted by you and an invoice will be generated by the Service on the Tuesday. You will liable to pay the User by the Thursday.
7.12 During the term of the Engagement, if you directly or indirectly engage a User working under a Temporary Role by way of a permanent engagement either during the term of the Temporary Role or extension, on completion of the Temporary Role or extension, or within 12 months after the termination of the Temporary Roles or extension, then a further Fee will become payable to us as detailed in the Subscription Document (“Role Extension Fee”).
7.13 You acknowledge that we are only a marketplace, and we shall have no Liability (subject to Clause 2), and you bear sole responsibility and Liability for the consequences of your use of the Service, the listing of Roles on the Website, any Engagement with a User, and any acceptance of a User for those Roles and your entering into any Engagement.
7.14 We may provide to you the Additional Services for the Additional Services Fee.
8. The Contract
8.1 You authorise us to act as your limited representative solely to conclude Contracts on your behalf between you and each relevant User. You acknowledge that we are only a facilitator, and that we are not an employer or engager of any User nor are we acting as an employment agency or employment business in connection with the Service or at all. We provide a venue for you and Users to negotiate and agree security role opportunities in accordance with the provisions of this Agreement.
8.2 We are not an agent of a User or the Company and, subject to Clause 2, we shall not have any Liability for the Roles or the Users suitability for such Roles. All Contracts are formed solely between you and the relevant User, and the enforcement of any Contract is the responsibility of you and the relevant User (being the parties to that contract), and, subject to Clause 14.2, we shall not have any Liability for the failure of either you or the relevant User to fulfil such obligations. We will act as a liaison in respect of disputes between you and the relevant User using our complaints procedure, but we are not obliged to mediate between you and any User or to enforce or execute any fulfilment of any Contract.
8.3 You acknowledge that you are responsible for the contractual relationship between your and the User once an Engagement is entered into (whether such relationship is an employment relationship or a self-employed relationship), and you are responsible for and agree to comply with your obligations under the Contract and any and all relevant employment laws in connection with the Engagement. The Contract shall be in such form as you require, at your absolute discretion from time to time, provided that such Contract is not wholly onerous against the User or discriminatory or otherwise illegal. We shall make such form of the Contract available on the Website, on your Profile, on request by you.
8.4 Notwithstanding Clause 3, in the event that you do not provide us with any such form of Contract as set out in Clause 8.3, you permit us to use a set of default template terms and conditions, created by us, to represent the Contract (“Default Terms”).
8.5 You acknowledge that the Default Terms, and therefore the Contract if the Default Terms are used by you, may not comply with relevant law, meaning that the Contract may also not comply with relevant law. We shall not be responsible, and we shall not have any Liability (subject to Clause 2), for any Default Terms failing to comply with relevant employment law or:
8.5.1 failure by you to comply with relevant law in respect of any Engagement or your use of the Service; and
8.5.2 subsequent action taken against or in respect of you by any User or other third party (including any government or regulatory body or consumer protection association);
whether you use the Default Terms or any other terms as the Contract.
8.6 You acknowledge that we have a separate user agreement in place for each User in respect of use of the User App itself. Such user agreement does not apply to your provision of Roles, which is covered by the Contract.
8.7 You shall use best endeavours to ensure that, in addition to conforming in all respects with all Applicable laws including, but not limited to, the Sex Discrimination Act 1975, Race Relations Act 1976, Disability Discrimination Act 1995, Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000, Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, Employment Equality (Religion or Belief) Regulations 2003, Employment Equality (Sexual Orientation Regulations) 2003 and Employment Equality (Age) Regulations 2006 and any other statutory or common law requirements relating to discrimination. You will also ensure that all Content complies with the minimum requirements set out in Regulation 27 of the Conduct of Employment Agencies and Employment Businesses Regulations 2003. and any Roles shall comply with all relevant written descriptions published by you (whether through the Website or otherwise).
8.8 Without prejudice to any other right or remedy which we may have, if we reasonably believe that you have failed to comply in any way with, any of the terms of this Agreement, we may exercise any one or more of the following remedies at our absolute discretion, whether or not any of the Roles have been accepted by the User:
8.8.1 rescind this Agreement (in whole or in part); and/or
8.8.2 remove any Role from the Website; and/or
8.8.3 close your Account.
9. Your obligations
9.1. You shall:
9.1.1 ensure that the terms of the Subscription Document are complete and accurate;
9.1.2 ensure that you fully co-operate with us, including in order to enable us to carry out fully, accurately and promptly our obligations under this Agreement to the best of our ability;
9.1.3 provide to us in writing information about your business for your Profile, which shall be subject to our approval (such approval not to be unreasonably withheld or delayed) and shall be subject to this Agreement;
9.1.4 not submit to us or to any User anything which in any respect may infringe the Intellectual Property Rights or privacy or other rights of us or any third party;
9.1.5 promptly provide us with such information, data and assistance (including anything identified in the Subscription Document for you to provide to us) that will enable us to carry out fully, accurately and promptly our obligations under this Agreement to the best of our ability, where such information, data and assistance shall, at all times;
9.1.6 promptly comply with all of our reasonable requests under this Agreement;
9.1.7 have all necessary rights, permissions and consents to enter into, and perform your obligations under, this Agreement; and
9.1.8 comply with all Applicable laws, statutes, regulations and by-laws in relation to the exercise of your rights and performance of your obligations under this Agreement and in relation to any Engagement.
9.2 It is your responsibility to ensure that you provide us with the information required to enable us to properly provide the Services, including Content. We shall not be responsible or have any Liability (subject to Clause 2) for any failure to provide the Services to the extent caused by your failure to properly ensure the provision of the relevant information to us.
9.3 You shall ensure that all Content and other information, including any images, you provide to us is of at least the same quality, completeness and accuracy as the highest quality and most complete and accurate content and other information displayed or used by you on any media other than the Website.
9.4 You shall not in any way use the Website or the Service, or submit to us or the Website or the Service, or to any user of the Website or the Service, anything which in any respect:
9.4.1 is in breach of any law, statute, regulation or byelaw of any applicable jurisdiction;
9.4.2 is fraudulent, criminal or unlawful;
9.4.3 is inaccurate or out-of-date;
9.4.4 is obscene, indecent, vulgar, discriminatory, offensive, threatening, defamatory or untrue;
9.4.5 impersonates any other person or body or misrepresents a relationship with any person or body;
9.4.6 may infringe or breach the copy or Intellectual Property Rights of any third party;
9.4.7 may be contrary to our interests;
9.4.8 is contrary to any specific rule or requirement that we may stipulate for the Service; or
9.4.9involves your use, delivery or transmission of any viruses, unsolicited communications, Trojan horses, trap doors, cancelbots, back doors, worms, easter eggs, time bombs or computer programming routines that are intended to damage, interfere with, surreptitiously intercept or expropriate any data, personal information or system.
9.5 You may not use any automated means to access your Account, the Website or the Service or collect any information from them unless we explicitly agree in writing to allow you to do so.
9.6 It is your responsibility to ensure that the Service is sufficient and suitable for your purposes and meets your individual requirements. It is your responsibility to ensure that:
9.6.1 you have sufficient capacity to enter into this Agreement; and
9.6.2 your use of the Service and the making available of Roles through the Website is in your best interests;
and you bear sole responsibility and Liability (subject to Clause 14.2) for the consequences of your use of the Service and the making available of Roles.
9.7 By providing to us information which we will display on the Website and User App:
9.7.1 you warrant to Users that:
a) you are properly authorised to advertise the Roles; and
b) unless we have agreed with you in advance and in writing to the contrary, you warrant to us that: you are a duly organised business, validly existing and in good standing under the laws of the state or country in which the business is registered.
9.8 You must maintain and update information and Content provided by you to us as applicable. You shall audit the information you provide to us that is listed on the Website on a regular basis (at least weekly) to ensure ongoing compliance with this Agreement.
9.9 You shall not impersonate any person or use a name that you are not legally authorised to use. If you provide false or incorrect information or do not notify us of changes to your information or Content immediately, we reserve the right to terminate this Agreement under Clause 4.1.
9.10 We shall not be responsible or have any Liability (subject to Clause 2) for:
9.10.1 information or Content provided to us by you that is in breach of any provision of this Agreement and that is subsequently posted on the Website or User App; or
9.10.2 the listing of any Roles on or through the Website or User App that is in breach of any provision of this Agreement or any Applicable law
10. Payments under this Agreement
10.1 In consideration of us providing to you access to the Service pursuant to this Agreement, you shall pay to us the Fees.
10.2 You shall pay the Fees to us at such times and in such instalments as set out in the Subscription Document or as we may direct from time to time. Unless set out otherwise in this Agreement, we may issue invoices to you for the Fees at such intervals as we may, at our absolute discretion, consider appropriate.
10.3 You shall pay all amounts due to us under this Agreement by any payment method that we may stipulate from time to time. No payment shall be considered paid until we have received it in cleared funds in full.
10.4 The Fees are stated exclusive of VAT, which shall be added at the prevailing rate as applicable and paid by you following delivery of a valid VAT invoice by us.
10.5 Your payment of all amounts due to us under this Agreement shall be in the currency in force in England from time to time.
10.6 We reserve the right to increase the Fees by giving you not less than 30 days’ notice of such increase taking effect. If you would prefer for this Agreement to come to an end, you may terminate this Agreement by the provision to us of 10 Business Days to take effect at the end of such 30 day notice period of the increase.
10.7 You must pay all amounts due under this Agreement in full without any set-off, counterclaim, deduction or withholding except as required by law. We may, without limiting our other rights or remedies, set off any amount owing to us by you against any amount payable by us to you.
10.8 If you are late in paying any part of any monies due to us under this Agreement and such payment remains outstanding for seven days following us providing notice to you of such outstanding payment, we may (without prejudice to any other right or remedy available to us whether under this Agreement or by any statute, regulation or bye-law) do any or all of the following:
10.8.1 charge interest and other costs on the overdue amount due but unpaid at the annual rate of interest set under Section 6 of the Late Payment of Commercial Debts (Interest) Act 1998 from time to time from the due date until payment (after as well as before judgment), such interest to run from day to day and to be compounded monthly;
10.8.2 recover our costs and expenses and charges (including legal and debt collection fees and costs) in collecting the late payment; and
10.8.3 suspend performance of this Agreement until payment in full has been made.
11. Payments to Users
All payments made by you to the User will be made via the Stripe Payment Services, and you agree to be bound by any terms and conditions that are put in place by Stripe and amended from time to time. As a fee-collecting agent Stripe will collect payment from you and then pass it on to the User.
12. Intellectual Property Rights
12.1 We and you acknowledge that, as between us and you, we and our licensors own all Intellectual Property Rights in the Account, the Website and the Service. We grant to you a limited non-transferable licence to make use of the Account, the Website and the Service in accordance with this Agreement. This licence expressly excludes, without limitation:
12.1.1 any resale or commercial use of the Website or the Service;
12.1.2 modifying, distributing, copying, republishing or making any derivative of the Website or the Service; and
12.1.3 the collection and use of participant email addresses or other User information or listings, or any data extraction or data mining whatsoever.
Any goodwill accruing out of the use of our and our affiliates Intellectual Property Rights under this Agreement shall vest in us and our affiliates, as the case may be.
12.2 You grant to us and our affiliates a non-exclusive, worldwide, royalty-free, perpetual, irrevocable licence to exercise all Intellectual Property Rights over the information and Content provided by you to us under this Agreement.
12.3 Subject to anything else to the contrary in this Agreement, neither Party shall have any rights over or to use the other Party’s Intellectual Property Rights for any other purpose without the other Party’s express prior written consent.
13.1 Each Party shall keep the other Party’s Confidential Information confidential and shall not:
13.1.1 use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
13.1.2 disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 13.
Each Party shall use adequate procedures and security measures to protect the other Party’s Confidential Information from inadvertent disclosure or release to unauthorised persons.
13.2 A Party may disclose the other Party’s Confidential Information to those of its employees, agents and subcontractors who need to know such Confidential Information provided that:
13.2.1 it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
13.2.2 it does so subject to obligations equivalent to those set out in this Clause 13.
13.3 A Party may disclose the Confidential Information of the other Party to the extent such Confidential information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other Party as much notice of such disclosure as possible and, where notice of disclosure is not prohibited and is given in accordance with this Clause 3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
13.4 The obligations of confidentiality in this Clause 13 shall not extent to any matter which either Party can show:
13.4.1 is in, or has become part of, the public domain other than as a result of a breach of the confidentiality obligations of this Agreement; or
13.4.2 was independently developed by it; or
13.4.3 was independently disclosed to it by a third party entitled to disclose the same; or
13.4.4 was in its written records prior to receipt.
13.5 Each Party reserves all rights in its Confidential Information. No rights or obligations in respect of a Party’s Confidential Information other than those expressly stated in this Agreement are granted to the other Party, or to be implied from this Agreement.
13.6 We may identify you as a user of the Service, provided that, in doing so, we shall not reveal any of your Confidential Information (without your prior written consent).
13.7 On termination of this Agreement, each Party shall:
13.7.1 return to the other Party all documents and materials (and any copies) containing, reflecting, incorporating or based on the other Party’s Confidential Information;
13.7.2 erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
13.7.3 certify in writing to the other Party that it has complied with the requirements of this Clause 7, provided that a recipient Party may retain documents and materials containing, reflecting, incorporating or based on the other Party’s Confidential Information to the extent required by law or any applicable governmental or regulatory authority. The provisions of this Clause 13 shall continue to apply to any such documents and materials retained by a recipient Party following termination of this Agreement for any reason.
13.8 The provisions of this Clause 13 shall continue to apply after termination of this Agreement.
14. Limitation of Liability
14.1 This Clause 14 prevails over all of this Agreement and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
14.1.1 performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any services in connection with this Agreement; or
14.1.2 otherwise in relation to this Agreement or entering into this Agreement.
14.2 Neither Party excludes or limits its Liability for:
14.2.1 its fraud; or
14.2.2 death or personal injury caused by its Breach of Duty; or
14.2.3 any breach of the obligations implied by Section 2 of the Supply of Goods and Services Act 1982; or
14.2.4 any other Liability which cannot be excluded or limited by Applicable law.
14.3 Subject to Clause 2, and other than any Liability arising pursuant to this Agreement, we do not accept, and we hereby exclude, any Liability for Breach of Duty.
14.4 Subject to Clause 2, we shall not have any Liability in respect of any:
14.4.1 indirect or consequential losses, damages, costs or expenses;
14.4.2 loss of actual or anticipated profits;
14.4.3 loss of contracts;
14.4.4 loss of use of money;
14.4.5 loss of anticipated savings;
14.4.6 loss of revenue;
14.4 7 loss of goodwill;
14.4.8 loss of reputation;
14.4.9 loss of business;
14.4.10ex gratia payments;
14.4.11 loss of operation time;
14.4.12 loss of opportunity;
14.4.13 loss caused by the diminution in value of any asset; or
14.4.14 loss of, damage to, or corruption of, data;
whether or not such losses were reasonably foreseeable or we or our agents or contractors had been advised of the possibility of such losses being incurred. For the avoidance of doubt, Clauses 14.4.2 to 14.4.14 (inclusive) of this Clause 14.4 apply whether such losses are direct, indirect, consequential or otherwise.
14.5 Subject to Clause 2, our total aggregate Liability arising out of or in connection with all claims in aggregate (including warranty claims and losses relating to the breach of warranty) shall be limited to the greater of:
14.5.1 110% of all amounts paid and total other sums payable, in aggregate, by you to us under this Agreement in the 12 months prior to the date on which the claim first arose; or
14.6 The limitation of Liability under Clause 5 has effect in relation both to any Liability expressly provided for under this Agreement and to any Liability arising by reason of the invalidity or unenforceability of any term of this Agreement.
14.7 You acknowledge and accept that we only make the Service available on the express condition that we will not be responsible, nor, subject to Clause 2, shall we have any Liability, directly or indirectly, for any act or omission of you, your affiliates or your or their employees, agents, contractors or customers or any third party.
15.1 You may terminate this Agreement with immediate effect at any time by notifying us via your Account, or in such a manner as we may specify. By terminating this Agreement in accordance with Clause
15.2 Without prejudice to any of our rights or remedies under this Agreement or at law, we may terminate this Agreement with immediate effect (or such other notice period as we see fit at our absolute direction) by giving notice to you if you fail to pay any amount due under this Agreement on the due date for payment and such amount remains in default not less than 14 days after being notified to make such payment.
15.3 We may terminate this Agreement immediately by notice in writing to you if we reasonably consider that our relationship with you may cause our brand or business to be brought into disrepute.
15.4 Each Party may terminate this Agreement immediately by notice in writing to the other Party if:
15.4.1 subject to Clause 1, the other Party is in material breach of any of its obligations under this Agreement, and, where such material breach is capable of remedy, the other Party fails to remedy such breach within a period of 10 Business Days of being notified of such breach by the Party;
15.4.2 the other Party suspends or ceases, or threatens to suspend or cease, to carry on all or a substantial part of its business; and/or
15.4.3 the other Party gives notice to any of its creditors that it has suspended or is about to suspend payment or if it shall be unable to pay its debts within the meaning of Section 123 of the Insolvency Act 1986, or an order is made or a resolution is passed for the winding-up of the other Party or an administration order is made or an administrator is appointed to manage the affairs, business and property of the other Party or a receiver and/or manager or administrative receiver is appointed in respect of all or any of the other Party’s assets or undertaking or circumstances arise which entitle the court or a creditor to appoint a receiver and/or manager or administrative receiver or administrator which entitle the court to make a winding-up or bankruptcy order or the other Party takes or suffers any similar or analogous action in consequence of debt in any jurisdiction.
15.5 Termination of this Agreement shall be without prejudice to any accrued rights or remedies of either Party.
15.6 Termination of this Agreement shall not affect the coming into force, or continuance in force, of any provision which is expressly or by implication intended to come into or continue in force on or after such termination.
15.7 On termination of this Agreement for any reason:
15.7.1 you shall cease to have access to the Service; and
15.7.2 you shall pay to us any outstanding amounts due to us as Fees which relate to the period prior to termination, whether invoiced or not.
16. Data Protection
16.1 The Parties acknowledge that, in relation to their obligations under this Agreement, they will each act as independent Data Controllers in respect any Personal Data relating to Users (“User Data”). For the avoidance of doubt, it is not envisaged that you will be processing User Data as a Data Processor on our behalf.
16.2 Each Party shall:
16.2.1 maintain all registrations and notifications under the Data Protection Legislation which are required;
16.2.2 comply with the Data Protection Legislation and respond to any notice received under the Data Protection Legislation independently; and
16.2.3 use reasonable efforts to assist the other Party to comply with all obligations imposed on the other Party by the Data Protection Legislation. For the avoidance of doubt, this includes an obligation on the first Party to provide the other Party with reasonable assistance in complying with any notice served on the other Party under the Data Protection Legislation.
16.3 You shall:
16.3.1 promptly comply with any request from us requiring you to amend, transfer or delete User Data;
16.3.2 if you receive any complaint, notice or communication which relates directly or indirectly to the User Data or to either Party’s compliance with the Data Protection Legislation, immediately notify us and you shall provide us with full co-operation and assistance in relation to any such complaint, notice or communication;
16.3.3 at our request, provide to us a copy of all User Data held by you in the format and on the media reasonably specified by us;
16.3.4 not transfer the User Data outside the European Economic Area without our prior written consent; and
16.3.5 promptly inform us if any User Data is lost or destroyed or becomes damaged, corrupted, or unusable, and you shall restore such User Data at your own expense.
16.4 You shall inform us immediately if you become aware of any unauthorised or unlawful processing, loss of, damage to or destruction of the User Data.
17.1 You shall indemnify us, and keep us indemnified, against all liabilities, costs, expenses, damages and losses (including any direct, indirect or consequential losses, loss of profit, loss of reputation and all interest, penalties and legal costs (calculated on a full indemnity basis) and all other professional costs and expenses) suffered or incurred by us arising out of or in connection with:
17.1.1 your breach, negligent performance or non-performance of this Agreement or Contract;
17.1.2 the enforcement of this Agreement;
17.1.3 any claim made against us for actual or alleged infringement of a third party’s Intellectual Property Rights arising out of or in connection with any the information and Content provided by you to us under this Agreement;
17.1.4 any claim made against us by a third party (including a User) arising out of or in connection with any Roles, to the extent that such claim arises out of the breach, negligent performance or failure or delay in performance of this Agreement by you, your employees, agents or subcontractors;
17.1.5 any income tax, National Insurance and social security contributions and any other liability, deduction, contribution, assessment or claim arising from or made in connection with the Service or any Engagement where the recovery is not prohibited by law;
17.1 6any claim by a User arising out of or in connection with any breach or alleged breach of the terms of the Contract or the Engagement;
17.1.7 any employment-related claim and/or any claim based on worker status (including but not limited to unfair dismissal, holiday pay, sick pay, redundancy, breach of contract, discrimination or unlawful deduction from wages) brought by or on behalf of any User arising out of or in connection with the Service or any Job or any actual or proposed Engagement; and/or
17.1.8 any claim made against us by a third party (including a User) for death, personal injury or damage to property arising out of or in connection with a Roles, to the extent that such claim is attributable to the acts or omissions of you, your employees, agents or subcontractors.
17.2 This indemnity in Clause 1 shall apply whether or not we have been negligent or at fault.
18. Force Majeure
18.1 Subject to Clause 2, neither Party shall have any Liability for any breach, hindrance or delay in performance of its obligations under this Agreement which is caused by an Event of Force Majeure, regardless of whether the circumstances in question could have been foreseen. An “Event of Force Majeure” means any cause outside of the Party’s reasonable control, including act of God, actions or omissions of third parties (including hackers, suppliers, couriers, governments, quasi-governmental, supra-national or local authorities), insurrection, riot, civil war, civil commotion, war, hostilities, threat of war, warlike operations, armed conflict, imposition of sanctions, embargo, breaking off of diplomatic relations or similar actions, national emergencies, terrorism, nuclear, chemical or biological contamination or sonic boom, piracy, arrests, restraints or detainments of any competent authority, blockade, strikes or combinations or lock-out of workmen, epidemic, fire, explosion, storm, flood, drought, adverse weather conditions, loss at sea, earthquake, natural disaster, accident, collapse of building structures, failure of plant machinery or machinery or third party computers or third party hardware or vehicles, failure or problems with public utility supplies (including general: electrical, telecoms, water, gas, postal, courier, communications or Internet disruption or failure), shortage of or delay in or inability to obtain supplies, stocks, storage, materials, equipment or transportation.
18.2 Each of the Parties agrees to inform the other upon becoming aware of an Event of Force Majeure, such information to contain details of the circumstances giving rise to the Event of Force Majeure.
18.3 The performance of each Party’s obligations shall be suspended during the period that the circumstances persist and such Party shall be granted an extension of time for performance equal to the period of the delay.
18.4 Each Party shall bear its own costs incurred by the Event of Force Majeure.
18.5 If the performance of any obligations is delayed under this Clause 1, each Party shall nevertheless accept performance as and when the other shall be able to perform.
18.6 If the Event of Force Majeure continues without a break for more than one month, either Party may terminate this Agreement immediately by notice to the other, in which event neither Party shall have any Liability (subject to Clause 2) to the other Party by reason of such termination.
18.7 If we have contracted to provide identical or similar services to more than one customer and we are prevented from full meeting our obligations to you due to an Event of Force Majeure, we may decide at our absolute discretion which contracts we will perform and to what extent.
19.1 Any notice given to either Party under or in connection with this Agreement shall be in writing, addressed to the relevant Party at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that Party may have specified to the other Party in writing, and shall be delivered personally, sent by pre-paid first class post, recorded delivery or commercial courier.
19.2 A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; or, if delivered by commercial courier, on the date and at the time that the courier’s delivery receipt is signed.
19.3 The provisions of this Clause 19 shall not apply to the service of any proceedings or other documents in any legal action.
You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Agreement or any right, benefit or interest under it, nor transfer, novate or sub-contract any of your obligations under it, without our prior written consent (such consent not to be unreasonably withheld or delayed).
21.1 If any court or competent authority finds that any provision of this Agreement (or part of any provision) is invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed to be deleted, and the validity and enforceability of the other provisions of this Agreement shall not be affected.
21.2 If any invalid, unenforceable or illegal provision of this Agreement would be valid, enforceable and legal if some part of it were deleted, the provision shall apply with the minimum modification necessary to make it legal, valid and enforceable.
A waiver of any right or remedy under this Agreement is only effective if given in writing and shall not be deemed a waiver of any subsequent breach or default. No failure or delay by a Party to exercise any right or remedy provided under this Agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it preclude or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall preclude or restrict the further exercise of that or any other right or remedy.
23. Third party rights
23.1 A person who is not a Party shall not have any rights under or in connection with this Agreement.
We may vary this Agreement at any time on the provision to you of 100 days’ written notice. If, following receipt of such notice from us, you would prefer for this Agreement to come to an end, you may terminate this Agreement by the provision to us of three months’ notice to take effect at the end of such 100 day notice period of the variation.
25. No partnership
Nothing in this Agreement shall constitute a partnership or employment or agency relationship between the Parties.
This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document.
27. Governing law and jurisdiction
27.1 This Agreement and any dispute or claim arising out of or in connection with it or its subject matter (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England.
27.2 The Parties irrevocably agree that the courts of England shall have exclusive jurisdiction to settle any dispute or claim that arises out of or in connection with this Agreement or its subject matter.