Terms & Conditions ("Agreement")
Thanks for using the Findmyshift website, products and services ("Services"). The Services are provided by Out Crowd Ltd ("Out Crowd"), English registered company number: 6339507, located at 4th Floor, 86-90 Paul St, London, EC2A 4NE, United Kingdom.
- Services: all websites, mobile sites, applications, products and services provided by Out Crowd in relation to Findmyshift.
- Content: all information, data, images, documents, files, scripts, applications, electronic media, calendar dates, tasks, telephone, e-mail or other contact details, logos, text, webpage and any other file or data or similar material to each of the foregoing which is uploaded, distributed, disseminated or incorporated, processed or entered into, onto or via the Services. Content may be provided by Out Crowd or you. The term Content includes User Content.
- User Content: Content you upload, submit or send to the Services (which for the avoidance of doubt includes all Content uploaded, submitted or sent by your staff, contractors or directors provided by you).
- Subscription: the fees payable by you to Out Crowd in order for you to access the Services;
- Subscription Term: the period for which you have paid fees to receive access to the Services;
- Virus: Any thing or device (whether tangible or intangible) which may prevent, impair or otherwise adversely affect the operation of any software, hardware, network or any related or similar service or device. For the avoidance of doubt, Virus includes but is not limited to viruses, malware, malicious code, Trojan horses, worms, corrupted files, time bombs, and cancelbots.
- Terms defined in the singular include the plural and vice versa.
- Any reference to “we”, “us” or “our” refers to Out Crowd.
- Any reference to “you” and “your” refers to visitors and/or users of the Services, as applicable, from time to time.
- Schedule: an entity comprising of staff, facilities, shifts and other related Content. Depending on your region, this may be referred to as a roster, rota or schedule in the Services.
- Owner: a person who created and subsequently owns one or more Schedules.
- Manager: a person who has been nominated by the Owner to manage the User Content and Subscription of one or more Schedules.
Acceptance of this Agreement
- By accessing and/or using the Services you expressly agree to be bound by the terms of this Agreement.
- If you do not agree to all of the terms of this Agreement you are not authorised to access or use the Services.
- This Agreement shall be effective as soon as you access or use the Services.
- This Agreement, and any documents referred to in it, constitutes the whole Agreement between the parties and supersedes any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- We reserve the right to update and change this Agreement from time to time without notice however accessing and/or using the Services (whether continuous or not) after any such changes shall constitute your consent to such changes to this Agreement.
- Any new features that augment or enhance the current Services, including the release of new tools and resources, shall be subject to this Agreement.
- Changes to this Agreement will not apply retroactively and will become effective immediately.
- If you do not agree to any changes, do not use or access (or continue using or accessing) the Services.
- You guarantee and warrant to Out Crowd that you possess the legal capacity to enter into and perform this Agreement and any other agreements formed in accordance with this Agreement.
- You will not use the Services for any purpose that is unlawful or prohibited by this Agreement.
- Out Crowd controls and operates the Services from its headquarters in England and makes no representation that the Services or the materials in the Services are appropriate or will be available for use in locations other than England. If you use the Services from outside England, you are entirely responsible for compliance with applicable local laws. Without limiting this Agreement, you agree to comply with all applicable laws regarding access to and use of the Services, the transmission of data exported from the country in which you reside and with all local laws and rules regarding acceptable use of and conduct on the internet.
Access to the Services
When using the Services, you must not access, store, distribute or transmit any material that:
- Subject to you paying the Subscriptions in accordance with clause 9 and complying in full with the terms of this Agreement, Out Crowd hereby grants you a non-exclusive, non-transferrable right to access and use the Services during the Subscription Term solely for your own internal business purposes.
- Save as expressly permitted in this Agreement, you shall not do any of the following:
- distribute, sell, supply, copy, modify, alter adapt, translate, amend, incorporate, merge or otherwise alter the Services provided to you by Out Crowd;
- attempt to actually decompile, reverse engineer or otherwise disassemble any Content or Service provided by Out Crowd;
- attempt to circumvent any part of the user interface provided for the Services for any reason without written permission from Out Crowd;
- remove or alter any Content provided by us to you;
- reverse engineer or attempt to extract the source code for any of the Services;
- duplicate, sell, lease, sub-licence, rent, share, republish or redistribute any Content made accessible to you through the Services;
- attempt to copy or decrypt any Content provided to you by Out Crowd, nor any software, source code or any part thereof provided to you;
- remove or alter any logo, trade mark, trade name, copyright or other proprietary notification or marking affixed to or embedded in any Content or anywhere in or on the Services;
- allow or set up any accounts for non-humans including bots, programs, or scripts to operate the Services
- use bots, programs or scripts to set up accounts to access or use the Services.
When accessing or using the Services, you must not access, store, distribute or transmit any Viruses.You must not use the Services to generate any form of SPAM or unsolicited contact, including but not limited to emails, SMS messages and push notifications.For the avoidance of doubt, Out Crowd retains the right to terminate your access if it reasonably believes you have breached any provision of clause 4.For the avoidance of doubt, at all times you shall remain responsible and liable for the acts and/or omissions of your employees, contractors and/or directors to who access these Services on your behalf, including any breach by them of the terms of this Agreement.Any breach of clause 4 entitles Out Crowd to terminate this Agreement, such termination to be without prejudice to any other rights or remedies Out Crowd may have against you.
- is unlawful, harmful, defamatory, obscene or infringing;
- consists of or facilitates an illegal activity;
- is discriminatory on the grounds of age, race, gender, religion, sexual orientation or disability;
- may reasonably be considered to cause damage or injury to another person or property.
Provision of Services by Out Crowd
If availability of the Services as described in clause 5.7 is lower than 75% (seventy five percent) in any 3 month (90 day) period you shall be able to terminate the Services within 7 days of notifying us in writing of this failure.The contents of the Services do not constitute advice and should not be relied upon in making or refraining from making, any decision.Content submitted or uploaded to the Services is not actively monitored and may contain objectionable content. If you find content to be offensive or in breach of this Agreement, please contact our support team.
- The Services are provided “as is” and “as available”, with no guarantee or warranty the Services will be uninterrupted, timely, accurate, reliable, secure or error free, or that defects will be corrected.
- Whilst we use commercially available software to protect our systems and the Services from Viruses, no guarantee or warranty is made that our systems and the Services will be free of viruses or any other malicious or harmful contents.
- No guarantee or warranty is made that the Services will work identically on all browsers and all devices, and it is exclusively your responsibility to check whether any Services will work on your intended browsers or devices.
- Whilst Out Crowd shall use commercially reasonable endeavours to make the Services available 24 hours a day, 7 days per week, no guarantee or warranty is made to the availability and security of your User Content and encourages users to download their own backups as often as possible. Consequently, you agree that Out Crowd shall be in no way liable to you or any third party for any lack of availability or defect in provision of Services.
- No guarantee or warranty is made to the deliverability of messages originating from the Services, including but not limited to emails, SMS messages and push notifications.
- We shall be entitled to retain subcontractors for the performance of obligations in accordance with this Agreement.
- In order to ensure continuity of services, we use all reasonable commercial endeavours:
- to ensure at least 99% total uptime of the Service, as measured over a rolling 3 month (90 day) period by a reputable external monitoring service of our choice from time to time;
- to ensure that our Services are secure; and
- if a security flaw is detected to provide notification as soon as is practicable after detection.
- Any period of planned maintenance is excluded from the 90 day uptime calculation in respect of clause 5.7.1. We will make reports of our uptime available on written request (such request not to be made more than twice in any calendar year).
- We will backup your data stored on our system. Full backups of your data are carried out daily and are held for a 28-day period.
- All backups are replicated to our disaster recovery data centre. In the event of a disaster at our primary data centre a handover to the disaster recovery data centre can be effective within 24 hours.
User account, password and security
- Should you wish to create an account in the Services, you will be required to provide certain information and register a username and password for use on the Services. You are responsible for maintaining the confidentiality of the username and password and also for all activities which take place under your account. You agree to immediately notify us of any unauthorised use of your password or account or any other breach of security. In no event will Out Crowd be liable for any indirect or consequential loss or loss of profits or loss of goodwill or damage whatsoever resulting from the disclosure of your username and/or password. You may not use another person’s account at any time, without the express permission of the account holder.
- You agree to notify us immediately of any unauthorised use of your passwords or accounts and to reimburse us for any improper, unauthorised or illegal use of the same by you or by any person obtaining access to the Services or otherwise, by using your designated username and password, whether or not you authorised such access.
Content uploaded and submitted to the Services by you
Notwithstanding our rights under this Agreement in relation to User Content, we have the right to, but do not undertake to, monitor the submission of User Content to, or the publication of User Content on, the Services.For the avoidance of doubt, the restrictions on User Content in clause 6.1 are in addition to and not in lieu of the user restrictions in clause 4.You must not use any User Content to link to any website, web page or resource consisting of or containing material that would, were it posted within the Services, breach the provisions of this Agreement.Each user agrees and confirms that no claim may be brought by it against Out Crowd arising out of or in connection with any inaccuracy in the Services or in any information comprising part of the Services arising as a result of any untruth, inaccuracy or incompleteness of any User Material.You hereby warrant and represent that you have obtained and continue to hold at all relevant times, all licences, consents and permissions required in order for you to upload, submit or send any and all User Content to Out Crowd and to the Services and for such User Content to be held and/or processed by Out Crowd pursuant to this Agreement. You agree to indemnify Out Crowd for any breach of this clause 6.
- User Content:
- is your exclusive responsibility as the user. Out Crowd is in no way responsible for the uploading or submission of content by users of the Services;
- must not be of a private or sensitive nature, unless prior consent is obtained by the owner of the content, or by the subject of the content. Where such data or information is deemed “personal information” under the Data Protection Act 1998 (including any subsequent amendments) the provisions of clause 6 shall apply;
- must be copyright free, and must not infringe any copyright, moral right, database right, trade mark right, design right, right in passing off or any intellectual or other property rights of any nature belonging to any third parties;
- must not be in breach of any laws;
- must not be libellous or maliciously false;
- must not infringe any right of confidence, right of privacy, or right under data protection legislation;
- must not constitute negligent advice or contain any negligent statement;
- must not constitute an incitement to commit a crime;
- must not be in contempt of any court, or in breach of any court order;
- must not be in breach of racial or religious hatred or discrimination legislation;
- must not be in breach of official secrets legislation;
- must not be in breach of any contractual obligation owed to any person;
- must not depict violence in an explicit, graphic or gratuitous manner;
- must not be untrue, false, inaccurate or misleading;
- must not consist of or contain any instructions, advice or other information which may be acted upon and could, if acted upon, cause illness, injury or death, or any other loss or damage;
- must not constitute spam;
- must not be offensive, deceptive, threatening, abusive, harassing, or menacing, hateful, discriminatory or inflammatory;
- must not cause annoyance, inconvenience or needless anxiety to any person;
- must not be obscene, indecent, pornographic or sexually explicit, offensive, immoral, malicious or derogatory to any users it may be visible to;
- must be taken down if requested by the owner of the content, the subject of the content, or by Out Crowd;
- may be made public (intentionally or unintentionally) to any users associated with your account; and
- may be removed by Out Crowd if it is deemed to be inappropriate;
Privacy and data protection
You are responsible for keeping your login information secure - Out Crowd will not be held responsible for security lapses by you or others.Both parties shall take appropriate technical and organisational measures against unauthorised or unlawful processing and/or loss or destruction of Personal Information as reasonable in light of their respective obligations under this clause 7.
- From time to time the Content provided by you may contain information which identifies individuals (herein “Personal Information”). This clause 7 shall adopt the terms set out in the Data Protection Act 1998.
- It is our practice that any User Content containing Personal Information should be encrypted before being stored on Out Crowd's servers, provided it has been identified as Personal Information by you.
- We use commercially reasonable endeavours to ensure that backups are created, encrypted and distributed on a regular basis to ensure the continuity and security of your User Content.
- Notwithstanding our practice as set out in clause 7.2 and clause 7.3 above, in the event of any loss or damage to User Content you provide (whether or not it includes or consists of Personal Information), your sole and exclusive remedy shall be for Out Crowd to use reasonable commercial endeavours to restore the lost or damaged Content from the latest back up in accordance with our practice set out in clause 7.2 and clause 7.3. For the avoidance of doubt, this remedy is only available for loss or damage to Content to the extent it was caused by deficient acts or omissions of Out Crowd, and Out Crowd shall not be responsible for any loss, destruction, alteration or disclosure of your User Content caused by any third party.
- Out Crowd is registered as a Data Controller with the Information Commissioner (reg. number Z3140758), and complies with the Data Protection Act of 1998.
- Whenever you upload User Content containing Personal Information, you are the Data Controller of that Personal Information, and Out Crowd is the Data Processor of that Personal Information. In any such case;
- you acknowledge and agree that Personal Information may be transferred or stored outside the EEA or the country where you are located in order to operate the Services and the Out Crowd’s other obligations under this Agreement;
- you shall ensure that you are entitled to transfer the relevant Personal Information to Out Crowd so that Out Crowd may lawfully use, process and transfer the Personal Information in accordance with this Agreement on your behalf; and
- you shall ensure that the relevant third parties have been informed of, and have consented to such use, processing and transfer.
- Subject to clause 8.2, the user will treat as strictly confidential (A) all information received or obtained as a result of accessing the Services or otherwise relating to Out Crowd, (B) the subject matter and provisions of the Services and this Agreement, and (C) any negotiations between the parties.
- The user may disclose information which would otherwise be confidential, if and to the extent, (A) required by law, (B) the information has come into the public domain through no fault of the user, or (C) Out Crowd has given prior written approval of the disclosure, provided in each case that, subject to law, any such information will be disclosed only after consultation with Out Crowd.
Payments, cancellations and refunds
- Use of the Services is subject to an Owner or Manager paying and continuing to pay the Subscription as it falls due.
- All Subscriptions are payable in advance, are per Schedule, and will be for a fixed period chosen by an Owner or Manager from one of our Subscription Term options.
- If Out Crowd has not received payment of the Subscription before the start of any renewal date, then without prejudice to any other rights or remedies, Out Crowd may:
- disable your access to all or part of the Services, and we shall be under no obligation to provide any or all Services whilst the invoice(s) concerned remain unpaid; and
- reserve the right to claim any interest from the Owner on overdue payments at rates allowed by the Late Payments Act.
Links and references to third parties services
- The Services provided by Out Crowd do not rely on third party services to operate. The utilisation of third party services is your sole responsibility and in no way a requirement to use the Services.
- Third party websites and services may be mentioned, linked or referenced to from within the Services; however they are not endorsed, recommended, checked or monitored by Out Crowd in any way.
- Usage of third party websites, goods and/or services is in no way the responsibility of Out Crowd and is done at your own risk.
Logging of activities
- Out Crowd's Services require the storage of user IP addresses to analyse trends, administer the Services, track user activity and gather broad demographic information for aggregate use. IP addresses are encrypted when stored, and cannot be linked to personally identifiable information.
- For systems administration, detecting usage patterns and troubleshooting purposes, Out Crowd's web servers automatically log standard access information including browser type, access times, URL requested, and referral URL.
- Out Crowd takes uses all reasonable endeavours to ensure that none of Out Crowd's log information is ever shared with any third parties unless directed by the English courts or required by legal or regulatory enforcement bodies. This log information will only be used within Out Crowd on a need-to-know basis for our internal business only.
- At any time you are free to disable cookies by altering your browser settings. However, Out Crowd has no control over your browser settings and you agree cannot be liable for any impact on the Services caused by your alterations.
Intellectual property and copyright
- Out Crowd or our licensors own the domain names for the Services and all intellectual property rights in the Services and the material in the Services.
- Without limiting clause 12.1, the Services and their content (including without limitation the text, text elements, logos, buttons, images, icons, source code, site design, structure, layout and distribution connected with the Services as well as the selection, assembly and arrangement thereof and any analysis Out Crowd may make of any such material or data) are owned by or licensed to Out Crowd or otherwise used by Out Crowd as permitted by law and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws. All rights not expressly granted to you in this Agreement are reserved to Out Crowd or its licensors.
- Access to the Services provided by Out Crowd are on the basis of the limited and terminable licence set out in clause 4.1 only and are not being sold to you. No ownership, resale, reproduction or distribution rights in respect of the Services are granted through such licence.
- The use and payment for the Services does not grant you ownership of any intellectual property rights (including for the avoidance of doubt, copyright, trade marks, patent, database rights, design rights or any other rights whether registered or unregistered or a similar nature anywhere around the world) of the Services or any of the Content Out Crowd provides within the Services.
- You may not use, reproduce, share or redistribute any content from the Services unless you obtain permission from Out Crowd or the owner.
- You are not permitted to use, reproduce, share or redistribute any branding or logos used or provided by the Services without written permission from Out Crowd.
- You are not permitted to remove, obscure, or alter any legal notices displayed in or along with the Services.
Changes to the Services
- Out Crowd aims to update the Services regularly and may change the Services at any time.
- There may be parts of the Services which are under development, labelled as “Beta”, which may contain errors. Use of such Services is at your own risk, and you agree that Out Crowd cannot be held in any way liable for any losses or damages you may suffer or incur as a result of your use of such Services.
- Features included in the Services may be added or removed at Out Crowd's sole discretion. The continuity, accessibility and accuracy of specific features are not guaranteed.
- Any upgrades or maintenance to the Services is at Out Crowd's sole discretion.
- The duration of any unavailability as a result of an upgrade or maintenance will be at Out Crowd's sole discretion. All reasonable steps will be taken to ensure the Services are restored as soon as possible.
- If the need arises (as determined by Out Crowd at its sole discretion), Out Crowd may suspend access to some or all of the Services, or shut them down indefinitely.
Indemnity and liability
- This clause 14 sets out the entire financial liability of Out Crowd (including any liability for the acts or omissions of its employees, agents and subcontractors) to you, arising under or in connection with this Agreement and/or your use of the Services.
- Out Crowd warrants only that we will use commercially reasonable endeavours to ensure that the Services shall perform substantially in accordance with our marketing materials provided to you. Consequently, Out Crowd provides the Services “as is” and “as available”, and makes no promises about the Services, their reliability, availability or accuracy. Furthermore, Out Crowd makes no warranty that the Services are fit for any particular purpose, and any such warranties implied or inferred by law or practice are hereby denied.
- Except as set out in clause 5.1 there are no other warranties or representations made by Out Crowd and the parties agree that no other warranties have been expressed or should be implied, and should be excluded to the fullest extent permitted by law.
- Nothing in this clause excludes Out Crowd’s liability for death or personal injury caused by Out Crowd’s negligence or for fraudulent acts or fraudulent misrepresentations made by Out Crowd.
- Out Crowd will not be responsible or liable whether as a matter of contract, tort or statute for any lost profits, opportunities, revenues, data, financial losses, intangible losses, goodwill or indirect, incidental, special, consequential, exemplary, or punitive damages howsoever arising under this Agreement.
- The maximum aggregate liability of Out Crowd for any claims under this Agreement, including for any implied warranties, is limited to the amount you paid Out Crowd to use the Services (or, to supplying you the Services again) for the 12 months preceding the date on which the claim arose.
- In all cases, Out Crowd will not be liable for any loss or damage that is not reasonably foreseeable.
- You agree that any unauthorised use of the Services and/or any related materials as a result of your negligent act or omission would result in irreparable injury to Out Crowd.
- Without limitation to any other rights Out Crowd may have, you agree to indemnify and hold Out Crowd, its affiliates, employees, agents and licensors harmless from and against all liabilities, legal fees, damages, losses, costs and other expenses in relation to any claims or actions brought against Out Crowd or any such person arising out of any breach by you of any of the terms of this Agreement and for any other liabilities, damages, losses, costs and other expenses (including reasonable legal fees) arising out of your use of the Services.
- We may terminate this Agreement immediately if you commit a material breach of any term of this Agreement.
- For the avoidance of doubt, all obligations on Out Crowd expire as soon as your Subscription Term expires.
- We may terminate this Agreement at any time and for any reason upon giving you 30 days written notice (including electronic communications).
- Upon termination of this Agreement or your Subscription Term (whichever is sooner) you shall cease all use and access of the Services and the Content (including your User Content), and we shall cease to have any obligation or responsibility with respect to the Content.
- This Agreement, and the documents referred to herein, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
- Each of the parties acknowledges and agrees that in entering this Agreement it does not rely on any undertaking, promise, representation (or misrepresentation), warranty, or understanding of any person relating to the subject matter of this Agreement, which is not expressly set out herein.
- Nothing in this Agreement constitutes, or will be deemed to constitute, a partnership between Out Crowd and the user, nor will it constitute, or be deemed to constitute, either of us as the agent or representative of the other of us for any purpose.
- The user may not assign any of its rights under this Agreement without the prior written consent of Out Crowd.
- Out Crowd may at any time, without the consent of the user, assign all or any part of its rights, benefits and/or obligations arising pursuant to this Agreement to a competent third party.
- If any provision (or part thereof) of this Agreement is found by a court to be invalid, unenforceable or illegal, the other provisions shall remain in force.
- If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intentions of the parties.
Waiver of Terms
- The waiver by either party of its rights in respect of any breach of any provision of this Agreement shall not be taken or held to be waiver in respect of any subsequent breach thereof.
- The failure or delay of any party to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Third party rights
- Apart from the licensors and authorised suppliers of Out Crowd, a person who is not a party to this Agreement has no right under this Agreement (Rights of Third Parties) Act 1999 or otherwise to enforce any of the terms of this Agreement.
- Neither party shall be liable to the other for any failure to perform any obligation under this Agreement (other than the payment of the Subscription), causing the termination of this Agreement, which is due to an event beyond the control of such party and which could not have been reasonably foreseen, including but not limited to any act of God, terrorism, war, political insurgence, insurrection, riot, civil unrest, act of civil or military authority, uprising, earthquake, flood or any other natural or man-made eventuality outside of the party’s control.
- Any party affected by such an event shall inform the other party of the same and shall use all reasonable endeavours to comply with the remaining terms of this Agreement.
Jurisdiction and applicable law
- This Agreement (and any dispute, controversy, proceedings or claims of whatever nature arising out of or in any relation to this Agreement or its formation) shall be governed by English law with the exception of the conflict of law rules, and the courts in England shall have exclusive jurisdiction in the event of any dispute hereunder (howsoever arising). This clause will survive any expiry, cancellation or termination of this Agreement for any reason.
Questions about this Agreement
- If you have any questions about the terms defined in this Agreement, please contact our support team.