Your attention is particularly drawn to the provisions of clause 12 (Our Responsibility for Loss or Damage Suffered By You).
- About us
- Basis of Contract
- Supply of Services
- Changes to Services
- Use of the Services
- Intellectual Property
- Data Protection
- Our Responsibility For Loss Or Damage Suffered By You
- Events Outside Our Control
- Communications and Notices
- Third Party Rights
- Governing Law and Jurisdiction
We are Kettle and Keyboard Limited, T/A RotaCloud, a company limited by shares and registered in England and Wales with company number 08625682 and our registered office is at RotaCloud, 20 George Hudson Street, York, England YO1 6WR. Any reference to ‘our’ or ‘us’ refers to RotaCloud as well as RotaCloud’s employees, agents or subcontractors.
Applicable Laws: all applicable laws, statutes, regulations from time to time in force.
API: any Application Programming Interface used to access the Services.
Authorised Users: your employees, agents or contractors who are designated by You as authorised to access the Services (by way of an individual account).
Business Day: a day other than a Saturday, Sunday or public holiday in England, when banks in London are open for business.
Commencement Date: the date We accept the Order in accordance with clause 2.
Conditions: these terms and conditions as amended from time to time in accordance with clause 2.5.
Confidential Information: the existence and terms of the Contract, all confidential or proprietary information relating to the business, affairs, clients, customers, suppliers, intentions or market opportunities of the other party and any other information that is identified or inherently confidential or proprietary in nature but is not in general available to the public or was made available to the receiving party by someone not bound by any confidentiality obligation in respect of such information.
Contract: the contract between us and You for the supply of Services in accordance with these Conditions.
Data Protection Legislation: (i) unless and until the General Data Protection Regulation ((EU) 2016/679) (GDPR) is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulation and secondary legislation, as amended or updated from time to time, in the UK and then (ii) any successor legislation to the GDPR or the Data Protection Act 2018.
Initial Order: the first Order placed by You and accepted by us in accordance with clause 2 of these Conditions.
Intellectual Property Rights: patents, rights to inventions, copyright and neighbouring and related rights, moral rights, trademarks and service marks, business names and domain names, rights in get-up, goodwill and the right to sue for passing off or unfair competition, rights in designs, rights in computer software, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Order: your order for Services as set out in your purchase order form or through the Website.
Personal Data: any information relating to an identifiable person who can be directly or indirectly identified in particular by reference to an identifier, including but not limited to name, address, contact details and online location data.
Services: the services, supplied by us to You as set out in the Specification.
Specification: the description or specification of the Services including the number of Authorised Users set out in the Order.
Subscription Term: the longer of either:
- a) the period for which You have paid us for the Services; or
- b) such other period as agreed in writing.
Usual Business Hours: 9.00am to 5.00pm local UK time, each Business Day.
Website: the RotaCloud website hosted at https://app.rotacloud.com or such other address as we may notify to You from time to time.
You: the person or firm who purchases Services from us and includes reference to ‘your’.
Basis of Contract
An Order constitutes an offer by You to purchase the Services in accordance with these Conditions.
An Order shall be deemed to be accepted when We issue written acceptance of the Order to You or begin to provide the Services to You.
The Conditions apply to the exclusion of any other terms that You seek to impose or incorporate, or which are implied by law, trade custom, practice or course of dealing.
Unless otherwise stated in writing, these Conditions shall apply to all future Orders.
We may amend the Conditions from time to time and We shall provide You with notice of such amendments via the Website not less than 7 days prior to such change coming into effect.
Subject to clause 4.2, the Contract will commence on the Commencement Date and continue for the Subscription Term.
Unless terminated by us or You in accordance with clause 13, the Contract will automatically renew on the basis of the terms of the Initial Order and for the same Subscription Term as the Initial Order.
Supply of Services
Subject to compliance with these Conditions, We shall supply the Services to You via the Website and/or API in accordance with the Specification.
The Services will be made available to You as detailed in the Specification and must be used only by You and the Authorised Users.
Subject to clause 5.4, We do not guarantee that the Website or API, or any content on them, will always be available or uninterrupted. We may suspend, withdraw or restrict the availability of all or any part of the Website or API for business or operational reasons and We will try to provide You with reasonable notice of such suspension, withdrawal or restriction.
We will always do all that we reasonably can to make sure that the Services are continuously available to You without interruption and to conduct maintenance outside of Usual Business Hours but, on occasions, it may be beneficial or necessary to conduct maintenance during Usual Business Hours. We will always try to minimise any disruption to You and to notify You of any planned maintenance that might cause disruption.
Changes to the Services
You are permitted to request a change to the scope of the Services at any point after the first calendar month of the Subscription Term. Any request must be made to us via the Website or in writing.
We will consider any such request to a change to the Services and will confirm to You in writing the outcome of our consideration. If We, in our absolute discretion, accept the request, We will confirm the updated Specification in writing.
We reserves the right to amend the Specification if necessary to comply with any applicable law or regulatory requirement, make business efficiencies, improve (in our opinion) the Services and/or the Website, or if the amendment will not materially affect the nature or quality of the Services, and We shall notify You in any such event.
In the event that We amend the Specification which materially affects the nature and quality of the Services, You will have the option of accepting the amendments to the Specification by continuing to use the Services or to terminate the Contract on notice of our amendments and terminate before expiry of notice in accordance with clause 13.
The price of the Services will be as quoted on the Website at the time You submit the Order or otherwise confirmed in writing in a quote prior to you submitting an Order. The price payable by You under the Contract is plus the variable value added tax (VAT) chargeable from time to time.
In the event that You request an amendment to the scope of the Services in accordance with clause 6.1 and We accept such request, the new price payable for the Services will be confirmed in the updated Specification and such changes in billing will be applied pro-rata and charged at the time the change takes place.
The prices for the Services may change from time to time and We shall provide You with 10 Business Days’ notice in advance of any change. In the event of such change, You will have the option to accept the change in price or terminate the Contract in accordance with clause 13.
In the event that We deem providing the Services to no longer be commercially viable, We may terminate the Contract immediately on notice to You.
Payment from You to us for the Services is required in advance of You receiving access to the Services via the Website and/or API.
In respect of payment for any Order which will automatically renew under clause 4.3, We shall invoice You in advance of any renewed Order unless stated otherwise in the Specification.
Unless otherwise expressly agreed in writing, all invoices are payable on delivery and You shall pay each invoice submitted by us in full and in cleared funds within 30 days of the date of the invoice, time being of the essence.
If You have access to the Services via the Website and/or API and payment for the Services is outstanding, We may suspend access to the Services until You have paid all amounts outstanding.
In addition to a suspension of access to the Services, We may charge You interest on any amount outstanding at the rate of 5% a year above the base lending rate of HSBC Bank plc from time to time. The interest shall accrue on a daily basis from the due date until the date of actual payment of the amount outstanding, whether before or after judgement. You must pay to us the interest together with any amount outstanding.
Due to the fact that the prices for the Services can vary depending on the length of the Subscription Term if the Contract is terminated or access to the Services is suspended for any reason:
- a) the full payment for the Subscription Term remains due and payable by you; and
- b) you will not be entitled to a refund of any sums paid in respect of the remaining Subscription Term after termination or suspension.
Use of the Services
- a) cooperate with us in all matters relating to the Services;
- b) provide us with such information as We may reasonably require in order to supply the Services, and ensure that such information is complete and accurate in all material respects;
- c) develop, implement and enforce policies and procedures for managing the allocation and use of individual accounts for Authorised Users to access the Services via the Website and/or API;
- d) use best endeavours to prevent any unauthorised access to, or use of, the Services; and
- e) promptly notify us, in accordance with clause 15, on becoming aware of any login and/or password to access the Services via the Website or API being known and/or available to a third party and its best efforts (including taking any steps stipulated by us at our sole discretion) to change the password associated with any login which has been compromised.
If We suspect that any unauthorised access to or use of the Services has occurred, or may occur, We will promptly notify You and may take steps to suspend and/or terminate Your access to or use of the Services.
Any abuse or unreasonably frequent requests, as determined by us in our sole discretion, made by You or an Authorised User via the API may result in the temporary or permanent suspension of your or Authorised User’s access to the API.
If We at any time suspect that You are not complying with any Conditions, including but not limited to access to or use of the Services, We may suspend and/or terminate the Services and will notify You of such suspension or termination.
All Intellectual Property Rights in or arising out of or in connection with the Services shall belong to us.
We grant to You a non-exclusive, royalty-free licence during the term of the Contract to use the Intellectual Property Rights in the Services for the purpose of receiving and using the Services in your business as detailed in the Order. You may not sub-license, assign or otherwise transfer the rights granted in this 10.2 or use the Intellectual Property Rights for any other purpose.
You grant to us a non-exclusive, royalty-free, non-transferable licence to copy and modify any Intellectual Property Rights provided by You to us for the term of the Contract for the purpose of providing the Services you.
You acknowledge that, in respect of any third party Intellectual Property Rights in the Services, your use of any such Intellectual Property Rights is conditional on us obtaining a written licence from the licensor on such terms as will entitle us to licence such rights to You.
You shall use best endeavours to ensure only You and Authorised Users have access to the Services and the Intellectual Property Rights in the Services by way of password protected login in accounts to the Web Address and API.
In the event that You suspect any actual or potential infringement or attempted infringement of the Intellectual Property Rights in the Services, You must promptly notify us in accordance with clause 15.
If We suspect any actual or potential infringement or attempted infringement of the Intellectual Property Rights in the Services, We may suspend your access to the Services immediately on notice to You.
The parties acknowledge that, for the purposes of the Data Protection Legislation, We are the Data Controller of your Personal Data and the Data Processor of the Authorised Users’ Personal Data. The Authorised Users’ Personal Data is provided to us by You for the purpose of providing the Services. The terms Personal Data, Data Controller and Data Processor have the meanings defined in the Data Protection Legislation.
In order to provide the Services to you, We will be required to process the Personal Data of Authorised Users and in respect of such Personal Data, us and You will comply with all applicable requirements of the Data Protection Legislation.
Without prejudice to the generality of clause 11.3, You will ensure that You have all necessary appropriate consents of the Authorised Users and notices in place to enable lawful transfer of the Personal Data of the Authorised Users to us for the duration and purposes of the Contract.
Without prejudice to the generality of clause 11.3, We will, in relation to any Personal Data processed in connection with the performance by us of our obligations under the Contract:
- a) process that Personal Data only on the documented instructions of You, unless We are required by Applicable Laws to otherwise process that personal data. Where We are relying on the laws of a member of the European Union of European Union Laws as the basis for processing Personal Data, We shall promptly notify You of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit us from so notifying You;
- b) ensure that We have in place appropriate technical and organisational measures, reviewed and approved by You, to protect against unauthorised or unlawful processing of personal data and against accidental loss or destruction of, or damage to, personal data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting personal data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to personal data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by us);
- c) ensure that all personnel who have access to and/or process personal data are obliged to keep the personal data confidential; and
- d) not transfer any personal data outside the European Economic Area unless the prior written consent of the Authorised User has been obtained.
For the purposes of clause 11.5(c) the You acknowledge and confirm that, at the date of the Contract, You have been provided with sufficient information to consider and have approved our systems and processes for the processing of Personal Data.
You consent to us appointing a number of third party processors of Personal Data under the Contract. A list of the third party processors is available on request.
For the purpose of clause 11.5(d) You acknowledge that We may use third party sub-processors that are based outside the European Economic Area and warrant to us that You have a valid lawful purpose, allowing us to transfer such personal data to the third party processors and You shall indemnify us against any loss suffered by us in respect of your failure to obtain such lawful purpose.
Our Responsibility for Loss Or Damage Suffered By You
Nothing in these Conditions shall limit or exclude our liability for:
- a) death or personal injury caused by our negligence, or the negligence of the our employees, agents or subcontractors (as applicable);
- b) fraud or misrepresentation;
- c) breach of terms implied by section 12 of the Sale of Goods Act 1979 or section 2 of the Supply of Goods and Services Act 1982; or
- d) any matter in respect of which it would be unlawful for us to exclude or restrict liability.
All terms implied by sections 13 to 15 of the Sale of Goods Act 1979 and sections 3 to 5 of the Supply of Goods and Services Act 1982 are excluded.
Subject to clause 12.1, We shall not be liable to You, whether in contract or in tort (including negligence), for breach of statutory duty, or otherwise, arising under or in connection with the Contract for:
- a) loss of profits;
- b) loss of sales or business;
- c) loss of agreements or contracts;
- d) loss of anticipated savings;
- e) loss of use or corruption of software, data or information;
- f) loss or damage to goodwill; and
- g) any indirect or consequential loss
Our total liability to You for all other losses arising under or in connection with the Contract, whether in contract, tort (including negligence), breach of statutory duty or otherwise shall be limited to any sums received by us under the Contract in the 12 months preceding any proceedings being issued by You.
We shall have no liability under the Contract in respect of any claim or potential claim by You unless We receive written notice of such claim within six months of the date such liability arose or the date that You ought reasonably to have become aware of such liability, such notice to contain, in reasonable detail, a description of the grounds for a claim and an estimate of loss.
We may terminate the Contract and access to the Services at any time by providing notice to You and such termination will be effective from the end of the Subscription Term.
You may terminate the Contract and access to the Services at any time after the Minimum Subscription Term by:
- a) providing written notice to us and such termination will be effective on the conclusion of the current Subscription Term; or
- b) by navigating to the appropriate billing page of the Website or API, using your individual login account which will have been created on the date of the Initial Order, and following the process detailed in the ‘Cancel Subscription Link’ which will be available on the billing page, and such termination will be effective at the end of the Subscription Term.
Without prejudice to any other rights or remedies to which either party may be entitled, either party may terminate the Contract and access to the Services without liability to the other if:
- a) the other party commits a material breach of any of the clauses of these Conditions and (if such a breach is remediable) fails to remedy that breach within 14 days of being notified in writing of that breach;
- b) an order is made or a resolution is passed for the winding-up of the other, or circumstances arise which entitle a court of competent jurisdiction to make a winding up order in relation to the other;
- c) an order is made for the appointment of an administrator to manage the affairs, business and property of the other, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other, or notice of intention to appoint an administrator is given by the other or its directors or by a qualifying floating charge holder (as defined in paragraph 14 of Schedule B1 to the Insolvency Act 1986);
- d) a receiver is appointed of any of the other’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other, or if any other person takes possession of or sells the other party’s assets;
- e) the other makes any arrangement or composition with its creditors, or makes an application to court of competent jurisdiction for the protection of its creditors in any way;
- f) the other ceases, or threatens to cease, to trade;
- g) You experience a Change in Control within the meaning of section 1124 of the Corporation Tax Act 2010, in which case only We are entitled to terminate; or
- h) the other takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
On termination of the Contract, We may destroy or otherwise dispose of any of your data in our possession unless We receive, no later than 10 days after the termination or expiry of the Contract, a written request for the delivery to You of the most recent back up of data. In the event of such request, We shall use reasonable commercial endeavours to deliver the data to You as soon as is reasonably practicable, provided that You have, at the time of the request, paid all outstanding fees and charges. You agree to pay all expenses incurred by us in providing the data to You.
Events Outside Our Control
Neither party will be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under the Contract that is caused by any act or event beyond its reasonable control (Event Outside Our Control).
If an Event Outside Our Control takes place that affects the performance of a party’s obligations under the Contract:
- a) such party will contact the other as soon as reasonably possible to notify them; and
- b) the such party’s obligations under the Contract will be suspended and the time for performance of their obligations will be extended for the duration of the Event Outside Control. Such party’s will arrange a new date for performance after the Event Outside Our Control is over.
You may terminate the Contract affected by an Event Outside Our Control which has continued for more than 30 days. If You choose to terminate the Contract, We will refund the price paid by You, less the charges reasonably and actually incurred by us in performing the Services up to the date of the occurrence of the Event Outside Our Control.
Communications and Notices
When we refer to "in writing" in these Terms, this includes email.
Any notice or other communication given to a party in connection with the Contract shall be in writing, addressed to that party at its registered office address or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be delivered personally, or sent by pre-paid first class post or other next working day delivery service, commercial courier or email.
A notice or other communication shall be deemed to have been received:
- a) if delivered personally, when left at our registered office;
- b) if sent by pre-paid first class post or other next working day delivery service, at 9.00am on the second Business Day after posting; or
- c) if sent by email, one Business Day after transmission.
We may at any time assign, transfer, mortgage, charge, subcontract or deal with all or any of our rights under the Contract to another organisation, but this will not affect your rights or our obligations under the Conditions. We will notify You in writing or by posting on the Website if this happens.
You may not, without prior written consent, assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of your rights or obligations under the Contract.
Neither party shall at any time for a period of 5 years after the termination of the Contract, disclose to any person any Confidential Information concerning the business affairs, customers, clients or suppliers of the other party, except as permitted by clause 17.2.
Both parties may disclose the other party’s Confidential Information:
- a) to its employees, officers, representatives, subcontractors, advisors or suppliers who need to know such information for the purposes of carrying out its obligations under the Contract, provided each party ensures the employees, officers, representatives, subcontractors, advisors or suppliers to whom confidential information has been disclosed comply with clause 17.3; or
- b) as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
Neither party shall use the other party’s Confidential Information for any purpose other than to perform its obligations under the Contract.
Third Party Rights
The Contract is between us and You. No other person shall have the rights to enforce any of its terms, whether under the Contracts (Rights of Third Parties) Act 1999 or otherwise.
We reserve the right, in our sole discretion, to change, modify, add to, supplement or delete any portion of these Conditions at any time, effective with or without notice, provided that We will use reasonable endeavours to provide You with reasonable notice of any material changes to the Conditions.
If We do not insist that You perform any of your obligations under the Contract, or if We do not enforce our rights against You, or if We delay in doing so, that will not mean that We have waived our rights against You or that You do not have to comply with those obligations. If We do waive any rights, We will only do so in writing, and that will not mean that We will automatically waive any right related to any later default by You.
Each paragraph of these Terms operates separately. If any court or relevant authority decides that any of them is unlawful or unenforceable, the remaining paragraphs will remain in full force and effect.
Governing Law and Jurisdiction
The Contract is governed by English law and each irrevocably agrees to submit all disputes arising out of or in connection with the Contract to the exclusive jurisdiction of the English courts.