Last updated: 20th Jun 2016  (Version 1.1)

Definitions

Throughout this document

About these Terms

These Terms apply to your access and use of the Services (as outlined in "The Services" section of these Terms) and any other content, products or services that may be provided by the Company. They describe in detail both your rights and the rights of the Company in relation to the provision of the Services. Please read them carefully before accessing or using the Services.

These Terms are the latest and supersede any earlier versions. They also supersede any prior agreements or arrangements that the Company may have made with you, unless otherwise explicitly confirmed with you in writing.

Contractual relationship

Your access and use of the Services constitutes your agreement to be bound by these Terms, which establishes a contractual relationship between you and the Company. If you do not agree to these Terms, you may not access or use the Services.

Acceptance of these Terms is also regarded as agreement to the our collection and use of personal information in connection with the Services, as detailed in our Privacy Policy.

Supplemental terms

The introduction of services or products by the Company in future may require us to create additional terms supplemental to these. Any supplemental terms thus introduced are in addition to, and shall be deemed a part of, these Terms with regard to the applicable services or products. In the event of a conflict between these Terms and any supplemental terms, the supplemental terms shall be deemed to be more specific and will prevail over these Terms with respect to the applicable services or products.

The Services

The Services provided by the Company are made available through our technology platform, which may be comprised of any or all of the Circular Wave Application, our Website, servers, databases and other back end infrastructure. The Services enable Organisations to manage a Staff Bank and, amongst other things

• search for and book suitable Candidates for temporary vacancies
• communicate with Candidates
• manage new Candidates registering for your Staff Bank
• approve timesheets and pay Candidates for time worked
• analyse and track usage and spend

Direct engagement with candidates

The Services allow for Candidates not permanently employed by an Organisation to seek work within that organisation, in what is called “direct engagement”. This is already acknowledged practice with certain types of Organisations, to whom it offers many benefits such as tighter control of hourly rates and avoidance of fees that would otherwise be chargeable by intermediary third parties such as recruitment agencies. Examples of direct engagement include

• an Organisation engaging on a zero-hour contract / honorary basis for ad hoc shifts with a Candidate who is permanently employed elsewhere
• a freelance Candidate making special arrangements to do ad hoc work for an Organisation without an intermediary agency, billing direct

This concept can also be taken much further when two or more Organisations choose to pool their staff resources by unifying their Staff Banks via the Services.

Direct engagement and Staff Bank unification are hugely beneficial and is encouraged in order to maximise the savings potential of the Services. However it is solely at your discretion and the functionality is not enabled by default - the Services afford an Organisation absolute control over which Candidates are able to seek and undertake work with them at all times.

Although the Services offer this functionality, and that additional functionality may exist for checking and ensuring Candidate compliance with Employment Checks, you acknowledge that the Company is a software provider and not a recruitment agency. You therefore acknowledge that the Company does no independent checking of Candidates’ suitability to work, that responsibility for ensuring Candidate compliance is the sole preserve of the Organisation, and that Candidates sourced via the Services are not employed by the Company or any of its affiliates.

License granted for use of the Services

Subject to your acceptance of, and compliance with, these Terms, the Company grants you a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to

• download and use the Circular Wave Application on an unlimited number of devices owned by your employees (i.e. their personal devices)
• download and use the Circular Wave Application on an unlimited number of devices owned by you (i.e. corporate devices)
• access and use the Website on an unlimited number of computers, personal devices or corporate devices
• access and use any content, information and related materials that may be made available through the Services, in each case solely for non-commercial use

All users accessing the Services must do so through their own unique accounts.

Any rights not expressly granted herein are reserved by the Company.

Restrictions on use of the Services

You may not

• remove any copyright, trademark or other proprietary notices from any portion of the Services
• reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by the Company
• decompile, reverse engineer or disassemble any part of the Services except as may be permitted by applicable law
• link to, mirror or frame any portion of the Services
• cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services
• attempt to gain unauthorised access to or impair any aspect of the Services, related systems or networks

Modification of the Services

The Company reserves the right to enhance any part of the Services at any time, implementing new elements if it so chooses. Such changes may affect the previous mode of operation of the Services. We expect that any such modifications will enhance overall functionality and user experience, but it is possible that you may not agree with us. If this is the case then we always value product feedback and you are strongly encouraged to contact us.

Depending on local configuration and software update settings, updates to the Services may be automatically downloaded to your computers and devices from time to time. These updates will be released with the intention of improving, enhancing, repairing and/or further developing the Services. The Company will endeavor to provide you with the option of whether or not to install updates, however, in certain circumstances (e.g. critical fixes or security patches) you may be required to install the an update to continue accessing the Services. In all cases, you agree to permit the Company to deliver these updates to you as part of your use of the Services.

Limitation and termination of the Services

You may deactivate your Organisation's account with us at any time without notice or reason, by sending an email to [email protected]

The Company reserves the right to temporarily limit or terminate the Services, wholly or in part, at any time and with any reason. This may occur with respect to you in particular, or pursuant to a more general limitation or cessation of the Services. Reasons for the Company limiting or terminating the Services may include

• breach or violation of these Terms or any supplemental terms
• an extended period of inactivity (determined at the discretion of the Company)
• non-payment of any fees for the Services, or other sums due to the Company
• discontinuation or material modification of the Service by the Company
• unexpected technical or security issues

The Company will endeavour to provide you with as much notice as it reasonably can of any such limitation or termination, with our aim for such notice to be 7 days at an absolute minimum. However, the Company reserves the right to terminate the Services immediately if

• you are in serious breach of these Terms
• it is impractical to give such notice in the circumstances
• in the opinion of the Company, any delay in termination would expose it or a third party to significant risk of harm or damage

Data retention and deletion after termination of Services

After termination of your subscription, the Company will retain any Customer data created and stored during use of the Services for a period, to allow for data extraction. This period will be 90 days in duration, after which your data will be securely deleted.

The functionality to perform such a data extraction will not necessarily be made available to the Customer, and a request to perform extraction may need to be made to the Company. The Company will not be held liable for deletion of data as described in this section.

Ownership of the Services

The Services and all rights therein are and shall remain the property of the Company and any licensors. Neither these Terms nor your use of the Services convey or grant to you any rights

• in or related to the Services except for the limited license granted above
• to use or reference in any manner the Company’s names, logos, product and service names, trademarks or services marks or those of the Company’s licensors

Third party services and content

The Company may from time to time engage certain affiliates or other third parties to provide technical or other services relating to all or part of the Services, or perform certain functions associated with their operation, and you hereby agree that such third party involvement is acceptable.

You acknowledge that different terms of use and privacy policies may apply to such third party services and content, that the Company does not necessarily endorse such third party services and content and that in no event shall the Company be responsible or liable for any products or services of such third party providers.

Please see our Privacy Policy to understand the extent to which any affiliate or third party may have access to your information.

Your use of the Services

User accounts

In order to use the Services, all required users within an Organisation must register for and maintain an active personal account (“Account”). This is necessary to allow you to set granular permissions per user for the various functionality within the Services. For these and security reasons, it is vital that multiple users do not share an account. The Company reserves the right to use functionality to detect simultaneous access by more than one device and lock user accounts where such activity is detected.

Account registration requires users to submit certain personal information to the Company, as outlined in our Privacy Policy. After registration users agree to maintain accurate, complete, and up-to-date information in their Accounts. Failure to do so may result in inability to access and use the Services, or the Company’s termination of this Agreement with them. Users must also agree to maintain the security and secrecy of their Account by protecting their username and password at all times.

Notifications

Much of the functionality of the Services is driven by sending you notifications in a variety of forms, for example push notifications, SMS text messages, and email. By using the Services, you agree you may be sent such notifications as part of normal operation. You may opt-out of receiving these notifications at any time by altering your settings within the Circular Wave Application and / or your device operating system. In doing so, you acknowledge that opting out of receiving notifications is not recommended by the Company and may degrade the full functionality and impact effective use of the Services.

Network access & devices

You are responsible for obtaining the data connection necessary to use the Services. Data and messaging fees may apply if you access or use the Services from a device connected to mobile networks, and you acknowledge that you shall be responsible for such rates and fees. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.

The Company does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices, and does not guarantee indefinite support for operating system versions that have been superseded. You acknowledge that you are responsible for acquiring, maintaining and updating compatible hardware or devices necessary to access and use the Services.

Notification of security incidents

Unlawful or unauthorised access to Customer data stored on Company infrastructure or in its facilities represents a security incident. Such incidents may have consequences such as loss, alteration or disclosure of Customer data. If the Company becomes aware of a security incident it will promptly

1. notify the Customer
2. investigate the security incident and provide the Customer with detailed information about it
3. take all reasonable steps to mitigate the effects of the security incident and minimise any damage resulting from it

Reporting or responding to a security incident is not an acknowledgement by the Company of any fault or liability.

Notification of security incidents may be by any means the Company chooses, including via email. It is the Customer’s sole responsibility to ensure that each admin account maintains accurate contact information. The Customer must also notify the Company promptly about any possible misuse of its accounts or authentication credentials, or any security incident related to the Services.

Indemnity & limitation of liability

Indemnity

You agree to indemnify and hold the Company, its subsidiaries, affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from, or in any way related to any third party claims relating to your use of any of the Services, any violation of these Terms, or any other actions connected with your use of the Services. In the event of such claim, we will endeavor to provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.

Limitation of liability

To the maximum extent permitted by law, the Services are made available “as is.” You expressly understand and agree that:

Your use of the Services is at your sole risk. The Services are provided on an “as is” and “as available” basis. To the maximum extent permitted by law, the Company expressly disclaims all warranties and conditions of any kind, whether express or implied, including, but not limited to the implied warranties and conditions of merchantability, fitness for a particular purpose and non-infringement.

The Company does not guarantee that

• the Services will meet all of your requirements
• the Services will be uninterrupted, timely, secure or error-free
• all errors in the Services will be corrected

No advice or information, whether oral or written, obtained by you from the Company or through or from the Services shall create any warranty not expressly stated in these Terms.

You also expressly understand and agree that the Company, its subsidiaries, affiliates and licensors, and our and their respective officers, employees, agents and successors shall not be liable to you for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data, cover or other intangible losses (even if the Company has been advised of the possibility of such damages) resulting from

• the use or the inability to use the Services
• unauthorised access to or the loss, corruption or alteration of your transmissions, content or data
• statements or conduct of any third party on or using the Services, or providing any services related to the operation of the Services
• the Company’s actions or omissions in reliance upon your account information and any changes thereto or notices received therefrom
• your failure to protect the confidentiality of any passwords or access rights to your account information
• the termination of your account in accordance with these Terms
• any other matter relating to the Services

Exclusions & limitations

Nothing in these Terms (including the limitation of liability provisions) is intended to exclude or limit any condition, warranty, right or liability which may not be lawfully excluded or limited. Some jurisdictions do not allow the exclusion of certain warranties or conditions or the limitation or exclusion of liability for loss or damage caused by willful acts, negligence, breach of contract or breach of implied terms, or incidental or consequential damages. Accordingly, only those liability and other limitations which are lawful in your jurisdiction (if any) will apply to you and our liability is limited to the maximum extent permitted by law.

Other provisions

You may not assign or transfer these Terms in whole or in part without the Company’s prior written approval. You give your approval to the Company for it to assign or transfer these Terms in whole or in part, including to

• a subsidiary or affiliate of the Company
• an acquirer of the Company’s equity, business or assets
• a successor by merger

No joint venture, partnership, employment or agency relationship exists between you, the Company or any third party provider as a result of the contract between you and the Company or use of the Services.