Orka Technology Group Ltd

Broadstone Employment Services Limited

WORKER TERMS & CONDITIONS

Worker Assignment Terms                Page 2

Worker Service Terms                        Page 10


AGENCY WORKER AGREEMENT

(this “Agency Worker Agreement”)

  1. Definitions

In this Contract:

  1. the following terms shall have the following meaning unless the context otherwise requires:

“App”: the mobile application software developed and created by Broadstone Engage for users and Clients to view and publish details of opportunities for work including potential Assignments;

“Assignment”:  the temporary services to be carried out by you for the Client, as more particularly described in Clause 3 and in the Job Confirmation;

“AWR 2010”:  the Agency Workers Regulations 2010 (SI 2010/93);

“BES”, “we”, “us” or “our”: Broadstone Employment Services Limited, incorporated and registered in England and Wales with company number 11790747 whose registered office is at XYZ Building, 2 Hardman Boulevard, Manchester, M3 3AQ;

“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);

“Broadstone Engage”: Orka Technology Group Ltd, incorporated and registered in England and Wales with company number 10396842 whose registered office is at XYZ Building, 2 Hardman Boulevard, Manchester, M3 3AQ;

“Orka Technology Group”:  means any company which is a subsidiary or holding company of BES, in each within section 1159 of the Companies Act 2006;

“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;

“Calendar Week”:  has  the meaning in regulation 7(4) of the AWR 2010;

“Client”:  the person, firm, partnership, company or Group company (as the case may be) to whom you are Introduced or supplied;

“Conduct Regulations 2003”:  the Conduct of Employment Agencies and Employment Business Regulations 2003 (SI 2003/3319);

“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 Contract 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 Contract, together with any reproductions of such information or any part of such information;

“Contract”: this Agency Worker Agreement and any document referred to in this Agency Worker Agreement; 

“Engage”:  your employment or engagement by a Client or other person firm or company whether directly or indirectly through any other employment business other than through ourselves (whether for a definite or indefinite period) as a direct result of any Introduction or Assignment and the term “Engaged” shall be construed accordingly;

“Introduce”:  the provision of information to any Client by us in any format as the Client may from time to time require which identifies you, and “Introduction” and “Introduced” shall be construed accordingly;

Job Confirmation”:  written confirmation of the details of a particular Assignment which we provide to you via the App on acceptance of that Assignment by you;

“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 Contract, including liability expressly provided for under this Contract or arising by reason of the invalidity or unenforceability of any term of this Contract (and, for the purposes of this definition, all references to “this Contract” shall be deemed to include any collateral contract;

 “Other Qualifying Period Payment”:  any remuneration payable to you (other than the Qualifying Period Rate of Pay), which is not excluded by virtue of regulation 6 of the AWR 2010, such as any overtime, shift premium, commission or any bonus, incentive or rewards which are directly attributable to the amount or quality of your work and is not linked to a financial participation scheme (as defined by the AWR 2010);

“Party”: either of us or you, and “Parties” shall mean both of us;

“Payment Procedure”: our policy outlining the various methods by which you will be paid in respect of an Assignment; 

“Qualifying Period Rate of Pay”:  the rate of pay that will be paid to you on completion of the Qualifying Period, if this rate is higher than the Rate of Pay. Such rate will be paid for each hour worked thereafter during an Assignment (to the nearest quarter hour) weekly in arrears, subject to any deductions that we are required to make by law and to any deductions that you specifically agree can be made;

“Qualifying Period”:  12 continuous Calendar Weeks, as defined in regulation 7 of the AWR 2010, subject to regulations 8 and 9 of the AWR 2010;

“Rate of Pay”:  the rate of pay that will be paid to you prior to completion of the Qualifying Period. Such rate will be paid for each hour worked during an Assignment (to the nearest quarter hour) weekly in arrears, subject to any deductions that we are required to make by law and to any deductions which you specifically agree can be made;

“Relevant Period”:  has the meaning set out in regulation 10(5) and (6) of the Conduct Regulations 2003;

“Relevant Terms and Conditions”:  the relevant terms and conditions as defined in regulation 6 of the AWR 2010 that apply once you have completed the Qualifying Period;

“Required Assignment Information”:  shall have the meaning set out at Clause 3.3;

“Smart Staffing Introduction Fee”:  a fee payable by the Client to us in the circumstances set out in Clause 4;

“Temporary Work Agency”:  has the meaning set out in regulation 4(1) of the AWR 2010;

“User”, “you” or “your”: the party whose services are to be supplied to the Client, who has entered into an agreement with us for access to the App;

“Vulnerable Person”:  shall have the meaning set out in regulation 2 of the Conduct Regulations 2003;

“WTR 1998”:  the Working Time Regulations 1998 (SI 1988/1833); and

  1. references to “Clauses” are to clauses of this Contract;
  2. the headings are inserted for convenience only and shall not affect the construction or interpretation of this Contract;
  3. a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  4. a reference to a Party includes its personal representatives, successors or permitted assigns;
  5. 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);
  6. 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;
  7. 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
  8. a reference to “writing” or “written” includes in electronic form and similar means of communication (except under Clause 13).
  1. Contract  
  1. The terms of this Contract constitute the entire agreement between you and us for the supply of services to the Client and will govern the specific associated with the specific job confirmation.  Assignments undertaken by you. No contract or mutuality of obligation shall exist between you and us between Assignments.
  2. By applying for an assignment within the App you agree to the terms of this Contract and that such terms will govern that specific Assignments undertaken by you. If you do not agree to the terms of this Contract you must not undertake the Assignment.
  3. In the event of a conflict between this Agency Worker Agreement and the Job Confirmation, then the Job Confirmation shall prevail over this Agency Worker Agreement.
  4. For the avoidance of doubt, this Contract constitutes a contract for services and not a contract of employment or a contract of service between us and you or between you and any Client.
  1. For the purposes of the Conduct Regulations 2003, we act as an employment business in relation to the Introduction and supply of you to Clients.
  1. Assignments  
  1. We will endeavour to obtain suitable Assignments for you to perform. We are not obliged to offer an Assignment to you and you are not obliged to accept any Assignment offered by us.
  1. You acknowledge that the nature of temporary work means that there may be periods when no suitable work is available. You agree that we shall determine the suitability of any potential work for an Assignment and that we will not be Liable to you in the event that we fail to offer you any Assignments.
  2. Except as provided below, at the same time as an Assignment is listed on the App, we shall seek to ensure that you are able to access the following information via the App (the “Required Assignment Information”):
  1. the identity of the Client, and if applicable, the nature of its business;
  2. the date the Assignment is to commence and the duration, or likely duration of the Assignment;
  3. the position which the Client seeks to fill, including the type of work you would be required to do in that position, the location at which you would be required to work, and the hours during which you would be required to work;
  4. the Rate of Pay and any expenses payable by, or to you;
  5. any risk to health and safety known to the Client in relation to the Assignment and the steps the Client has taken to prevent or control such risks; and
  6. the experience, training, qualifications and any authorisation which the Client considers are necessary or which are required by law or a professional body for you to possess in order to carry out the Assignment.
  1. Where the Required Assignment Information is not given in paper form or by electronic means, we shall confirm it in writing or electronically as soon as possible and in any event no later than the end of the third Business Day following the day on which the Assignment was offered to you.
  2. Unless you request otherwise, the requirements of  Clause 3.3 will not apply where you are being Introduced or supplied to the Client to work in the same position as one in which you have previously been supplied within the previous five Business Days and the Required Assignment Information (with the exception of the date or likely duration of the Assignment) is the same as that already given to you.
  1. Subject to Clause 3.5 and Clause 3.7, where the Assignment is intended to last for five consecutive Business Days or less, and the Required Assignment Information has previously been given to you and remains unchanged, we shall provide written confirmation of the identity of the Client and the likely duration of the Assignment.
  1. Where the provisions of Clause 3.6 have been met but the Assignment extends beyond the intended five consecutive Business Day period, we shall provide the remaining Required Assignment Information to you in paper or electronic form within eight Business Days of the start of the Assignment or, if it is sooner, by the end of the Assignment.
  2. If you have completed the Qualifying Period on the start date of the relevant Assignment or complete the Qualifying Period during the relevant Assignment, you will be informed of the Qualifying Period Rate of Pay (if different from the Rate of Pay), together with the Other Qualifying Period Payments and the other Relevant Terms and Conditions to which you will then become entitled under the AWR 2010.
  3. If you do not receive the Relevant Terms and Conditions on completion of the Qualifying Period, you may raise this in writing with us. We will, within 28 days of receiving your request, provide you with a written statement setting out:
  1. relevant information relating to the basic work and employment conditions of the workers of the Client;
  2. the factors that we considered when determining such basic work and employment conditions; and
  3. where we seek to rely on regulation 5(3) of the AWR 2010, relevant information which:
  4. explains the basis on which it is considered that an individual is a comparable employee; and
  5. describes the basic work and employment conditions which apply to that employee.
  1. Once you have found an Assignment that you are interested in, you may either apply for an Assignment, or contact a Client directly via our live chat function by selecting the appropriate button on the App. It will then be the Client’s discretion whether you are accepted for that Assignment. If the Client accepts you for an Assignment you will be notified via the App. Your application for an Assignment shall constitute an offer to enter into an individual Assignment and your receipt of a notification of the Client’s consent for you to perform such service shall be constituted as acceptance of such an offer and a legally binding contract shall be entered into between us and you for performance of the individual Assignment on the basis of this Contract.
  2. You acknowledge that we shall have no Liability (subject to Clause 12.2) if a Client either removes an Assignment from the App, or cancels or terminates the Assignment before it commences or during the provision of your services.
  1. Temporary to permanent  
  1. You acknowledge that we will be entitled to charge the Client the Smart Staffing Introduction Fee where:
  1. the Client Engages you within the Relevant Period; or
  2. the Client introduces you to a third party (other than another employment business) who subsequently Engages you within the Relevant Period.
  1. The Smart Staffing Introduction Fee will not be payable in the circumstances described in Clause 4.1.1 if the Client agrees to extend the period of the Assignment for a specified period at the end of which you may be Engaged by the Client without further charge.
  1. Temporary worker’s obligations  
  1. You are not obliged to accept any Assignment offered by us. If you apply for, or accept an Assignment, you shall:
  1. co-operate with the Client’s reasonable instructions and accept the direction, supervision and control of any responsible person in the Client’s organisation;
  2. observe all relevant rules and regulations of the Client’s organisation (including those relating to  normal hours of work) of which you are informed or of which you should be reasonably aware;
  3. co-operate with us and any Clients (as may be required) in the completion and renewal of all mandatory checks, including in relation to your right to work in the United Kingdom;
  4. where the Assignment involves working with any Vulnerable Person, provide the us with copies of any relevant qualifications or authorisations including an up-to-date Disclosure and Barring Service certificate and two references which are from persons who are not related to you;
  5. take all reasonable steps to safeguard your own health and safety and that of any other person who may be present or be affected by your actions on the Assignment and comply with the health and safety policies of the Client;
  6. not engage in any conduct detrimental to our interests or the interests of the Client;
  7. comply with all relevant statutes, laws, regulations and codes of practice (from time to time in force) in the performance of the Assignment and applicable to the Client’s business, including without limitation, any equal opportunities or non-harassment policies.
  1. You undertake that, if you accept any Assignment offered by us, you will, as soon as possible before each such Assignment starts, during each Assignment (as appropriate) and at any time at our request:
  1. inform us of any Calendar Weeks whether before the date of commencement of the relevant Assignment or during the relevant Assignment in which you have already worked in the same or a similar role with the Client via any third party;
  2. provide us with all the details of such work, including (without limitation) details of when, where and the period(s) during which such work was undertaken, the role performed and any other details requested by us;  
  3. inform us if before the date of the commencement of the relevant Assignment you have already:
  1. completed two or more assignments with the Client;
  2. completed at least one assignment with the Client and one or more assignments with a member of the Client’s Group; or
  3. worked in more than two roles during an assignment with the Client and on at least two occasions has worked in a role that was not the same role as the previous role:
  1. accurately clock in and out of work on any Assignment using the App;
  2. ensure that you accurately compete your time sheets and submit the same to us via the App by no later than 17:00 hrs on the Monday following any week during which you worked on an Assignment.
  1. If you are unable for any reason to attend work during the course of an Assignment, you, should first inform the Client and ourselves via the App at least one hour before your normal start time to enable alternative arrangements to be made. If this is not possible, you, or someone on your behalf, should inform the Client first and then inform us as soon as it is possible for you to do so.
  1. If, either before or during the course of an Assignment, you become aware of any reason why you may not be suitable for an Assignment, you must inform us without delay.
  1. Remuneration  
  1. Subject to you submitting properly authorised and accurate  time sheets via the App in accordance with Clause 7, we shall pay you the Rate of Pay until you complete the Qualifying Period.
  2. Subject to you submitting properly authorised and correct time sheets via the App in accordance with Clause 7, if you have completed the Qualifying Period on the start date of the relevant Assignment or following completion of the Qualifying Period during the relevant Assignment, we shall pay to you:
  1. the Qualifying Period Rate of Pay; and
  2. the Other Qualifying Period Payments,

which will be set out in the relevant Job Confirmation Form.

  1. Subject to any applicable statutory entitlement and subject to Clause 8 and Clause 9, you are not entitled to receive payment from us or the Client for time not spent working on the Assignment, whether in respect of holidays, illness or absence for any other reason, unless otherwise agreed.
  1. Time sheets and other working hours 
  1. You must accurately complete and submit all time sheets to us via the App by no later than 17:00 hrs on the Monday following any week during which you worked on an Assignment.  
  2. Subject to Clause 7.1 and Clause 7.3, we shall pay you for all hours worked in accordance with our Payment Procedure and regardless of whether we have received payment from the Client for those hours.
  3. If you fail to submit a properly authorised time sheet, any payment due to you may be delayed while we investigate (in a timely manner) what hours, if any, were worked by you. We will not pay you for hours not worked.
  4. For the avoidance of doubt and for the purposes of the WTR 1998, your working time shall only consist of those periods during which you are carrying out activities or duties for the Client as part of the Assignment. Time spent travelling to the Client’s premises (with the exception of time spent travelling between two or more premises of the Client), lunch breaks and other rest breaks shall not count as part of your working time for these purposes. This Clause 7.4 is subject to our obligation to provide you with the Relevant Terms and Conditions on completion of the Qualifying Period.
  5. WTR 1998 impose a limit on your working time. The precise calculation of this limit is complicated but in broad terms your working time is limited to an average of 48 hours per week however you may opt out of this limit. By accepting the terms of this Contract you are confirming that you wish to opt out of the limit on weekly working time and that accordingly your working time during an Assignment may exceed an average of 48 hours per week. Your agreement to opt out will continue indefinitely however you may change your mind and end your opt out by giving us three months’ notice by writing to info@broadstone-engage.com. If you do not wish to opt out of the limit on weekly working time, please contact info@broadstone-engage.com before the commencement of an Assignment .

  1. You acknowledge and accept that it could be a criminal offence under the Fraud Act 2006 to falsify any time sheet, for example by claiming payment for hours that were not actually worked.
  2. When submitting your time sheets via the App you must also inform us of all other working time that you spend working elsewhere during any week when you work on any Assignment for us.  We need this information to allow us to monitor your working time in accordance with the requirements of WTR 1998.
  3. WTR 1998 are designed to protect your health and safety. We would not wish your health and safety to be affected by your working conditions and if you ever feel that they may be, please bring this to our attention.
  1. Annual leave  
  1. Subject to Clause 8.2, you are entitled to the equivalent of 5.6 weeks’ paid holiday during each holiday year (including all bank holiday entitlements), calculated in accordance with and paid in proportion to the number of hours that you work on any Assignment during the holiday year. Our holiday year runs between 1 January and 31 December . If an Assignment starts or finishes part way through the holiday year, your holiday entitlement during that year shall be calculated on a pro-rata basis.
  1. On completion of the Qualifying Period, you may be entitled to paid or unpaid annual leave in addition to your entitlement under Clause 8.1. In those circumstances, we will inform you in the relevant Job Confirmation Form of any such entitlement, the date from which such entitlement will commence and how payment for such entitlement accrues.
  2. All entitlement to annual leave must be taken during the course of the holiday year in which it accrues and no untaken holiday can be carried forward to the next holiday year, save as required by law.
  3. You should give at least four weeks’ notice of any proposed holiday dates and these must be agreed by us in writing in advance.
  4. Subject to Clause 8.2, in the course of any Assignment during your first holiday year, you will be entitled to request leave at the rate of one-twelfth of your total annual holiday entitlement during each month of the holiday year.
  5. Where a bank holiday or other public holiday falls during an Assignment and you would ordinarily work on that day then, subject to you having accrued entitlement for payment for leave, that day shall count as part of your paid annual leave entitlement.
  6. At the end of the Assignment you shall be entitled to be paid in lieu of all accrued but untaken holiday for the holiday year in which the Assignment ceases.
  1. If you have taken more holiday than your accrued entitlement at the end of the Assignment, we shall be entitled to deduct the appropriate amount from any further payments that become due to you.
  1. Sickness absence  
  1. If you satisfy the qualifying conditions laid down by law, you may be entitled to receive Statutory Sick Pay (SSP) at the prevailing rate in respect of any period of sickness or injury during the Assignment. You will not be entitled to any other payments during such period.
  2. During the first seven days of any sickness absence you must contact us and the Client, either through the App or by telephone, to self-certify such sickness absence  For any period of incapacity due to sickness or injury which lasts for seven consecutive days or more, a doctor’s certificate (a “statement of fitness for work”) stating the reason for absence must be obtained at your own cost and supplied to us and the Client. Further certificates must be obtained if the absence continues for longer than the period of the original certificate. If you are certified as “fit for work” we, you and the Client will discuss any additional measures that may be needed to facilitate your return to work. If appropriate measures cannot be taken, we may terminate the Assignment or keep you on sick leave whilst we will set a further date to review the situation.
  3. Your qualifying days for SSP purposes are Mondays to Saturdays.
  1. Warranties
  1. You warrant that:
  1. the information supplied to us about you is correct;
  2. you have the experience, training, qualifications and any authorisation which the Client considers are necessary or which are required by law or by any professional body for you to possess in order to perform any Assignment;
  3. you have a valid SIA licence (if necessary), and that such licence is valid from the commencement of and during an Assignment and you understand that if for any reason your SIA licence is revoked during an Assignment, you may not be entitled to any payment from a Client for the Assignment from the point that your licence is revoked;
  4. you are not prevented by any other agreement, arrangement, restriction (including, without limitation, a restriction in favour of any employment agency, employment business or client) or any other reason, from fulfilling your obligations under this agreement; and
  5. you have valid and subsisting leave to enter and remain in the United Kingdom for the duration of this agreement and are not (in relation to such leave) subject to any conditions which may preclude or have an adverse effect on the Assignment.
  1. Termination 
  1. We, the Client, or you may terminate an Assignment at any time without prior notice or Liability (subject to Clause 12.2).
  2. You acknowledge that the continuation of an Assignment is subject to and dependent on the continuation of the agreement entered into between us and the Client. If that agreement is terminated for any reason, the Assignment shall cease with immediate effect without Liability to you, except for payment for work done up to the date of termination of the Assignment.
  3. Unless exceptional circumstances apply, your failure to inform the Client or us of your inability to attend work as required by Clause 5.3 will be treated as termination of the Assignment by you.
  4. If you are absent during the course of an Assignment and the Assignment has not otherwise been terminated, we will be entitled to terminate the Assignment in accordance with Clause 11.1 if the work to which you were assigned is no longer available.
  5. Termination (or expiry) of the agreement between us and you granting you access to the App, howsoever arising, shall automatically terminate all Assignments in force as at the date of such termination (or expiry); all ongoing Assignments as at the date of such termination shall terminate with immediate effect, and termination of such Assignments shall in any event be subject to the terms of our Cancellation Policy.
  6. The termination of any Assignment shall not effect any other Assignment, or the agreement between us and you granting you access to the App.
  1. Limitation of Liability
  1. This Clause 11.6 prevails over all of this Contract and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
  1. performance, non-performance, purported performance, delay in performance or mis-performance of this Contract or any services in connection with this Contract; or
  2. otherwise in relation to this Contract or entering into this Contract.
  1. Neither Party excludes or limits its Liability for:
  1. its fraud; or
  2. death or personal injury caused by its Breach of Duty; or
  3. any breach of the obligations implied by Section 2 of the Supply of Goods and Services Act 1982; or
  4. any other Liability which cannot be excluded or limited by Applicable law.
  1. Subject to Clause 12.2, and other than any Liability arising pursuant to this Contract, we do not accept, and we hereby exclude, any Liability for Breach of Duty.
  2. Subject to Clause 12.2, we shall not have any Liability in respect of any: 
  1. indirect or consequential losses, damages, costs or expenses;
  2. loss of actual or anticipated profits;
  3. loss of contracts;
  4. loss of use of money;
  5. loss of anticipated savings;
  6. loss of revenue;
  7. loss of goodwill;
  8. loss of reputation;
  9. loss of business;
  10. ex gratia payments;
  11. loss of operation time;
  12. loss of opportunity;
  13. loss caused by the diminution in value of any asset; or
  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 12.4.1 to 12.4.14 (inclusive) of this Clause 12.4 apply whether such losses are direct, indirect, consequential or otherwise.

  1. Subject to Clause 12.2, 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 £500,000.
  2. The limitation of Liability under Clause 12.5 has effect in relation both to any Liability expressly provided for under this Contract and to any Liability arising by reason of the invalidity or unenforceability of any term of this Contract.
  3. You acknowledge and accept that we only make the Assignment available on the express condition that we will not be responsible, nor, subject to Clause 12.2, 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.
  1. Confidentiality  
  1. Each Party shall keep the other Party’s Confidential Information confidential and shall not:
  1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Contract; or
  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.

  1. 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:
  1. it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
  2. it does so subject to obligations equivalent to those set out in this Clause 13.
  1. 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 8.3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
  2. The obligations of confidentiality in this Clause 13 shall not extent to any matter which either Party can show:
  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 Contract; or
  2. was independently developed by it; or
  3. was independently disclosed to it by a third party entitled to disclose the same; or
  4. was in its written records prior to receipt.
  1. 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 Contract are granted to the other Party, or to be implied from this Contract.
  2. On termination of this Contract, each Party shall:
  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;
  2. erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
  3. certify in writing to the other Party that it has complied with the requirements of this Clause 8.7, 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 Contract for any reason.
  1. The provisions of this Clause 13 shall continue to apply after termination of this Contract.
  1. Data protection

Please see our Privacy and Cookies Policy which forms part of this Contract.

  1. Pensions  

We will comply with our auto-enrolment obligations (if any) as required by the Pensions Act 2008 and associated legislation.

  1. Notices
  1. Any notice given to either Party under or in connection with this Contract 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, commercial courier or sent by email.
  2. A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 13.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, at the time of transmission.
  3. The provisions of this Clause 13 shall not apply to the service of any proceedings or other documents in any legal action.
  1. Assignment

You may not assign, transfer, charge or otherwise encumber, create any trust over, or deal in any manner with, this Contract 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).

  1. Severance
  1. If any court or competent authority finds that any provision of this Contract (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 Contract shall not be affected.
  2. If any invalid, unenforceable or illegal provision of this Contract 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.
  1. Waiver

A waiver of any right or remedy under this Contract 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 Contract 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.

  1. Third party rights
  1. Subject to Clause 20.2, no term of this Contract shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.
  2. The Parties intend that any right conferred upon BES under this Contract shall be enforceable by any company within the Orka Technology Group pursuant to and in accordance with the Contracts (Rights of Third Parties) Act 1999.
  1. Variation

We may change this Contract at any time by sending you an email with details of the change or notifying you of a change when you next start the App. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the App. If you do not agree with the changes, you may terminate this Contract in accordance with Clause 11.

  1. No partnership

Nothing in this Contract shall constitute a partnership or employment or agency relationship between the Parties.

  1. Counterparts

This Contract 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.

  1. Governing law and jurisdiction
  1. This Contract 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.

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 Contract or its subject matter.

APP TERMS AND CONDITIONS

 (these “Terms and Conditions”)

  1. Definitions

In this Agreement:

  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 Service and related services on the App;

Agency Worker Agreement”: an agreement on the basis of which we enter into a contact with you for the Business’ use of your temporary services;

Agreement”: these Terms and Conditions together with the relevant Registration Communications and Information and any document referred to in these Terms and Conditions or the Registration Communications and Information, save for the Contract and the Agency Worker Agreement;

“App”: the mobile application software developed and created by us, to be used by Users to view Roles and related services which are listed by Businesses;

Assignment: the use of an individual’s services on a temporary basis by a Business following entry into a contract for such assignment;

 “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);

“Orka Technology Group”:  means any company which is a subsidiary or holding company of Broadstone, as defined by section 1159 of the Companies Act 2006; 

Broadstone”, “we”, “us” or “our”: Broadstone Employment Services Limited, incorporated and registered in England and Wales with company number 11790747  whose registered office is at  XYZ Building, 2 Hardman Boulevard, Manchester M3 3AQ;

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;

“Business”: a company that uses the Service to list roles which you are able to view through the App, and with whom you may (if applicable) enter into an engagement in respect of any such role;

Community Guidelines”: our guidance setting how we expect you to act prior to, during, and after an Assignment to be found within the App;

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 in your Profile;

Contract”: a contract entered into between you and us on the basis of the Agency Worker Agreement in respect of an Assignments;

End User”: an individual who has contracted with us to receive access to the Service;

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;

“Profile”: the profile page we will create for you on the Service (using the App) where you can showcase information about yourself to a Business;

Referral Scheme”: our scheme to incentivise you to recommend an individual to register as an End User;

Registration Acceptance”: the email to you from us accepting the Registration Communications and Information;

Registration Communications and Information”: the written document you submit to us containing the specific information relating to the particular services to be supplied by us to you;

Reward”: the sum of £25, which may be credited to your Account under the Referral Scheme;

Roles”: the roles which are to be listed by a Business for a fixed period of time in the security sector;

Service”: the service provided by us which shall include:

  1. Roles being listed on the App;
  2. providing access to a live chat function between the End User and the Business if applicable;
  3. giving the End User the ability to post Timesheets and view earnings to date;
  4. giving the End User to apply for Assignments; and
  5. providing Businesses access to the End User’s Profile;

“Timesheets”: the form required to record the number of hours worked by you in respect of the Assignment (where applicable); and

User”, “you” or “your”: the recipient of services from us under this Agreement, whose details may be as set out in the Registration Communications and Information;

  1. references to “Clauses” are to clauses of these Terms and Conditions;
  2. the headings are inserted for convenience only and shall not affect the construction or interpretation of this Agreement;
  3. a “person” includes a natural person, corporate or unincorporated body (whether or not having separate legal personality);
  1. a reference to a Party includes its personal representatives, successors or permitted assigns;
  1. 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);
  2. 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. 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. a reference to “writing” or “written” includes in electronic form and similar means of communication (except under Clause 13).
  1. Agreement
  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. This Agreement constitutes the entire Agreement between the Parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter. Each Party agrees that it shall have no remedies in respect of any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this Agreement. Each Party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this Agreement.
  3. By downloading the App or clicking “submit” you agree to the terms of this Agreement which will legally bind you. If you do not agree to the terms of this Agreement, we will not provide access to the Service to you and you must not download the App.
  4. In the event of a conflict between these Terms and Conditions and the Registration Communications and Information, then the Registration Communications and Information shall prevail over these Terms and Conditions.
  1. The Service
  1. We shall:
  1. make available the Service to you; and
  2. list your Profile 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.
  1. We warrant that:
  1. we shall use our reasonable skill and care performing our obligations under this Agreement;
  2. we have all necessary rights, permissions and consents to enter into, and perform our obligations under, this Agreement; and
  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.
  1. We shall make available the Service using information and criteria supplied by you. It is your responsibility to provide accurate and updated information.
  2. 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 Service 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.
  3. 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. You acknowledge that we cannot guarantee uninterrupted, timely or error-free access to the Service or the App 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 or the App; however, we shall use our reasonable endeavours to minimise downtime of the Service and the App. Subject to us having used such reasonable endeavours, we do not warrant that the provision of the Service or the App to you will be uninterrupted or error-free.
  5. We reserve the right at our absolute discretion to make changes to the Service or the App at any time.
  6. We do not warrant that the Service or the App 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 9.2) for advising on, or failing to advise on, or doing, or failing to do, anything else.
  7. We do not guarantee that a Business will offer you an Assignment. Our only obligation to you is to provide the Service, subject to the terms of this Agreement. Except as expressly stipulated in this Agreement, we shall not be responsible or have any Liability (subject to Clause 9.2) for providing or achieving any particular results or outcomes or within a particular time.
  8. We retain the right to, if we consider it appropriate:
  1. remove any Content and/or your Profile;
  2. prevent or restrict access to the Service and/or the App; and/or
  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 Service under this Agreement.
  1. 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 App, the Account and our obligations under this Agreement.
  1. App and Account
  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 Roles, and can be used to communicate with a Business.
  2. You may access the Account and the App only with a device that is compatible with the Service, including any security features that are part of the Service.
  3. 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.
  4. 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 App. You are entirely responsible if you do not maintain the confidentiality of your password.
  5. Once you have access to your Account, you may update your Profile details by accessing your Account through the App.
  6. You agree to notify us immediately of any changes which are relevant to your Account by informing us through the App where possible or otherwise by telephoning us on 0161 533 0964 or emailing us at  community@broadstone-engage.com.
  7. We reserve the right to prevent you using the Service, the App, or your Account.
  8. When creating your Profile, you will be asked to provide details including your relevant qualifications, experience, training, licences, and any authorisation which may be required by law or by any professional body. You must ensure that all your relevant licences, authorisations and qualifications are accurate and up to date at all times
  9. When creating your Profile, if applicable you will be asked to upload your SIA licence or other Professional/Trade Certification (or provide or scan your SIA licence or other Professional/Trade Certification details using the App allowing us to access your SIA licence or other Professional/Trade Certification and display relevant information from or about your SIA licence or other Professional/Trade Certification in your Profile). We will be able to suggest Roles based on your licence type. 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:
  1. rescind this Agreement (in whole or in part); and/or
  2. remove your application for a Role from the App; and/or
  3. close your Account.
  1. If, on three separate occasions during the term of this Agreement you fail to act in accordance with our Community Guidelines you acknowledge that we may:
  1. suspend access to your Account for period of time that we consider appropriate (at our absolute discretion; or
  2. terminate this Agreement with immediate effect.  
  1. Your obligations
  1. You shall:
  1. ensure that the terms of the Registration Communications and Information are complete and accurate;
  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;
  3. provide to us in writing information about yourself 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;
  4. not submit to us or to any Business anything which in any respect may infringe the Intellectual Property Rights or privacy or other rights of us or any third party;
  5. promptly provide us with such information, data and assistance (including anything identified in the Registration Communications and Information 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;
  6. promptly comply with all of our reasonable requests under this Agreement;
  7. have all necessary rights, permissions and consents to enter into, and perform your obligations under, this Agreement; and
  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 Assignment.
  1. You acknowledge that each Assignment is subject to the Contract, and you agree to comply with your obligations under the Contract.
  2. It is your responsibility to ensure that you provide us with the information required to enable us to properly provide access to the Service, including Content. We shall not be responsible or have any Liability (subject to Clause 9.2) for any failure to provide access to the Service to the extent caused by your failure to comply with your obligations in Clause 5.
  3. You shall not in any way use the App or the Service, or submit to us or the App or the Service, or to any user of the Service, anything which in any respect:
  1. is in breach of any law, statute, regulation or byelaw of any applicable jurisdiction;
  2. is fraudulent, criminal or unlawful;
  3. is inaccurate or out-of-date;
  4. is obscene, indecent, vulgar, discriminatory, offensive, threatening, defamatory or untrue;
  5. impersonates any other person or body or misrepresents a relationship with any person or body;
  6. may infringe or breach the copy or Intellectual Property Rights of any third party;
  7. may be contrary to our interests;
  8. is contrary to any specific rule or requirement that we may stipulate for the Service; or
  9. involves 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.
  1. You may not use any automated means to access your Account, the App or the Service or collect any information from them unless we explicitly agree in writing to allow you to do so.
  2. 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:
  1. you have sufficient capacity to enter into this Agreement; and
  2. your use of the Service and the searching, viewing and acceptance of Roles through the App is in your best interests;

and you bear sole responsibility and Liability (subject to Clause 9.2) for the consequences of your use of the Service and the viewing and acceptance of Roles.

  1. 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 App on a regular basis (at least weekly) to ensure ongoing compliance with this Agreement.
  2. 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 10.3.1.
  3. We shall not be responsible or have any Liability (subject to Clause 9.2) for 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 Service.
  1. Referral Scheme
  1. As an End User, you are eligible to take part in our Referral Scheme. In order to qualify for a Reward, the following criteria must be satisfied:
  1. you must be expressly identified during an individual’s registration to become an End User when prompted by us, as to whether any party referred the Service to that person; and
  2. the individual must enter into, and perform an Assignment within six months of becoming an End User.
  1. If the individual has previously registered as an End User or previously expressed an interest to us in respect of receiving access to the Service, then the referral will not result in you being eligible for a Reward.
  2. Once we have verified through the Service that the individual has performed a Role after becoming an End-User then we will credit your Account with the Reward within five business days.
  3. We shall have no Liability (subject to 9.2) in the event that you are not adequately identified by the individual upon their registration as an End-User.
  4. We reserve the right to hold void, cancel, suspend, or amend the Referral Scheme and cancel the Reward without notice.
  1. Intellectual Property Rights
  1. We and you acknowledge that, as between us and you, we and our licensors own all Intellectual Property Rights in the Account, the App and the Service. We grant to you a limited non-transferable licence to make use of the Account, the App and the Service in accordance with this Agreement. This licence expressly excludes, without limitation:
  1. any resale or commercial use of the App or the Service;
  2. modifying, distributing, copying, republishing or making any derivative of the App or the Service; and
  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.

  1. 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.
  2. 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.
  1. Confidentiality
  1. Each Party shall keep the other Party’s Confidential Information confidential and shall not:
  1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement; or
  2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this Clause 8.

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.

  1. 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:
  1. it informs such employees, agents and subcontractors of the confidential nature of the Confidential Information before disclosure; and
  2. it does so subject to obligations equivalent to those set out in this Clause 8.
  1. 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 8.3, it takes into account the reasonable requests of the other Party in relation to the content of such disclosure.
  2. The obligations of confidentiality in this Clause 8 shall not extent to any matter which either Party can show:
  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
  2. was independently developed by it; or
  3. was independently disclosed to it by a third party entitled to disclose the same; or
  4. was in its written records prior to receipt.
  1. 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.
  2. 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).
  3. On termination of this Agreement, each Party shall:
  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;
  2. erase all the other Party’s Confidential Information from its computer systems (to the extent possible); and
  3. certify in writing to the other Party that it has complied with the requirements of this Clause 8.7, 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 8 shall continue to apply to any such documents and materials retained by a recipient Party following termination of this Agreement for any reason.
  1. The provisions of this Clause 8 shall continue to apply after termination of this Agreement.
  1. Limitation of Liability
  1. This Clause 9 prevails over all of this Agreement and sets forth our entire Liability, and your sole and exclusive remedies, in respect of:
  1. performance, non-performance, purported performance, delay in performance or mis-performance of this Agreement or any services in connection with this Agreement; or
  2. otherwise in relation to this Agreement or entering into this Agreement.
  1. Neither Party excludes or limits its Liability for:
  1. its fraud; or
  2. death or personal injury caused by its Breach of Duty; or
  3. any breach of the obligations implied by Section 2 of the Supply of Goods and Services Act 1982; or
  4. any other Liability which cannot be excluded or limited by Applicable law.
  1. Subject to Clause 9.2, and other than any Liability arising pursuant to this Agreement, we do not accept, and we hereby exclude, any Liability for Breach of Duty.
  2. Subject to Clause 9.2, we shall not have any Liability in respect of any:
  1. indirect or consequential losses, damages, costs or expenses;
  2. loss of actual or anticipated profits;
  3. loss of contracts;
  4. loss of use of money;
  5. loss of anticipated savings;
  6. loss of revenue;
  7. loss of goodwill;
  8. loss of reputation;
  9. loss of business;
  10. ex gratia payments;
  11. loss of operation time;
  12. loss of opportunity;
  13. loss caused by the diminution in value of any asset; or
  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 9.4.2 to 9.4.14 (inclusive) of this Clause 9.4 apply whether such losses are direct, indirect, consequential or otherwise.

  1. Subject to Clause 9.2, 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 £50,000.
  2. The limitation of Liability under Clause 9.5 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.
  3. 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 9.2, 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.
  1. Termination
  1. You may terminate this Agreement with immediate effect at any time by either notifying us via your Account, or deleting your Account or in such a manner as we may specify. You acknowledge that if you are inactive from your Account for 3 weeks we may contact you to ensure we are providing the Service sufficiently in accordance with our Cookies and Privacy Policy.
  2. 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.
  3. We may terminate this Agreement immediately by notice in writing to you if:
  1. you are in material breach of any of your obligations under this Agreement, or any other agreement between us and you, which is incapable of remedy;
  2. you fail to remedy, where capable of remedy, any material breach of any of your obligations under this Agreement, or any other agreement between us and you, after having been required in writing to do so within a period of no less than 10 Business Days;
  3. you are in persistent breach of any of your obligations under this Agreement or any other agreement between us and you; and/or
  4. you give notice to any of your creditors that you have suspended or are about to suspend payment or if it shall be unable to pay your debts within the meaning of Section 123 of the Insolvency Act 1986, or a receiver and/or manager or administrative receiver is appointed in respect of all or any of your 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 take or suffer any similar or analogous action in consequence of debt in any jurisdiction.
  1. Termination (or expiry) of this Agreement, shall automatically terminate all Assignments in force as at the date of such termination (or expiry); all ongoing Assignments as at the date of such termination shall terminate with immediate effect.
  2. The termination of any Assignment shall not effect any other Assignment, or this Agreement.
  3. Termination of this Agreement shall be without prejudice to any accrued rights or remedies of either Party.
  4. 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.
  5. On termination of this Agreement for any reason you shall cease to have access to the Service.
  1. Data Protection

Please see our Privacy and Cookies Policy which forms part of this Agreement.

  1. Indemnity
  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:
  1. your breach, negligent performance or non-performance of this Agreement;
  1. the enforcement of this Agreement; and
  2. 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; and/or
  1. any claim made against us by a third party (including a Business) for death, personal injury or damage to property arising out of or in connection with a Role, to the extent that such claim is attributable to the acts or omissions of you.
  1. This indemnity in Clause 12.1 shall apply whether or not we have been negligent or at fault.
  1. Notices
  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, commercial courier or sent by email.
  2. A notice shall be deemed to have been received: if delivered personally, when left at the address referred to in Clause 13.1; if sent by pre-paid first class post or recorded delivery, at 9.00 am on the second Business Day after posting; if delivered by commercial courier, on the date and at the time that the courier's delivery receipt is signed; or, if sent by email, at the time of transmission.
  3. The provisions of this Clause 13 shall not apply to the service of any proceedings or other documents in any legal action.
  1. Assignment

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).

  1. Severance.
  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.
  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.
  1. Waiver

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.

  1. Third party rights
  1. Subject to Clause 17.2, no term of this Agreement shall be enforceable under the Contracts (Rights of Third Parties) Act 1999 by any person who is not a Party.
  2. The Parties intend that any right conferred upon Broadstone under this Agreement shall be enforceable by any company within the Orka Technology Group pursuant to and in accordance with the Contracts (Rights of Third Parties) Act 1999.
  1. Variation

We may change this Agreement at any time by sending you an email with details of the change or notifying you of a change when you next start the App. The new terms may be displayed on-screen and you may be required to read and accept them to continue your use of the Service. If you do not agree with the changes, you may terminate this Agreement in accordance with Clause 10.1.

  1. No partnership

Nothing in this Agreement shall constitute a partnership or employment or agency relationship between the Parties.

  1. Counterparts

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.

  1. Governing law and jurisdiction
  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.
  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.