Terms - February 19

Draft Terms - February 19

Thank you for choosing to use Firefish Software

 

These Terms are a legally binding contract between you (“you” or “customer”) and Firefish Software Ltd (“Firefish Software”), located at The Aquarium, Level 1, The Sinclair Building, 18-20 Eagle Street, Glasgow, G4 9XA. Firefish Software provides the Services (as defined below). When we use the term “Agreement” we are referring to these Terms, our Website Privacy & Cookie PolicyData Security & Trust PolicyData Processing Agreement and Service Level Agreement along with any additional terms referred to in your Order.

 
BY ACCESSING AND USING THE SERVICES IN ANY WAY, YOU AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICES OR THIS SITE.


Firefish Software may update or change these Terms, including (but not limited to) the fees and charges associated with the use of the Services.  We will let you know when we do via an email or in-app notification. The updated Terms will become effective and binding on the fifth business day after which they are posted. We encourage you to review these Terms periodically.


Last updated: February 2019

 

1. Description of the Services

 

Firefish Software is a hosted recruitment service, incorporating Applicant Tracking Software (ATS), Customer Relationship Management (CRM), Content Management System (CMS), social sharing tools, analytics, APIs, and other resources for recruiters. Firefish Software may be accessible through any medium or device now known or hereafter developed (the "Services"). The Services to which you have access depends on the (“Subscription”) that you choose and includes the features described on the Firefish Software website. The Services that are available may change from time to time, and Firefish Software may choose to discontinue some or all of the Services at its discretion.


You understand and agree that the Services may include certain communications from Firefish Software, such as service announcements and/or administrative messages. These communications are considered part of your Subscription and you will not be able to opt out of receiving them. Unless explicitly stated otherwise, any new features that augment or enhance the current Services, including the release of new Firefish Software features, shall be subject to these Terms.

 

2. Supply of Services 

 

To commence using our Services, you warrant that you have the right, authority, and capacity to agree to and abide by these Terms and that you are not prohibited by law from using the Services. You must provide Firefish Software with (“Your Information”) including your name, your company name, a valid mailing address, an email address and payment information. By agreeing, and in consideration of the use of the Services, you represent and warrant that: (i) Your Information is true, accurate, current, and complete; (ii) you are at least 18 years of age; and (iii) you will maintain and promptly update your Information to ensure it is always true, accurate, current and complete. You authorize Firefish Software to confirm the truthfulness and accuracy of your Information.


If you provide any information that is untrue, inaccurate, not current or incomplete, or if Firefish Software has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Firefish Software has the right to suspend or terminate your subscription and refuse any and all current or future use of the Services.

 

3. Payment & Subscriptions 

 

3.1 Duration - For annual or biennial Subscriptions, a paid User licence(s) will have authorised access to Firefish Software for twelve or twenty-four months from the date the User Licence(s) is activated. For monthly Subscriptions, your User Licence(s) will roll from month to month. Your Subscription is automatically renewed on successive billing dates for monthly, annual and biennial subscriptions.

 

3.2 Payment - You may subscribe to be billed monthly, annually or biannually for (“User licence(s)”). Full payment of onboarding charges must be made prior to gaining access to the system unless agreed otherwise in writing. All payments are accepted through Direct Debit via Online Direct Debit provider GoCardless or by Credit Card (Visa or Mastercard).

 

3.3 Additional User Licence(s) - At any time, you may request further users to have access to your subscription. New User Licence(s) will be billed pro rata from the date that user is subscribed to your next billing date, then monthly, annually or biannually in line with your subscription thereafter. Payment for the software is made in advance of the period of usage. Payment for any new user licences is due from the date login details are received and will be charged within 7 days of the receipt of these login details. 

 

3.5 Volume Discounts - Some clients may qualify for discount on their User licence(s). The discounts available consist of User Volume Discounts and Membership Discounts for associations affiliated with Firefish Software. Discount is at the discretion of Firefish Software and is only applied to full billable licences (not pro rata charges) and does not apply to any Onboarding, Web or Data Migration Services charges. 

 

3.6 Unpaid Charges – For any unpaid charges, access will be disabled after 14 days of non payment from the renewal date. Email notification will be issued to clients regarding failed payments with details on how to bring the account up to date. Access will be reinstated once payment is received. Except those charges under reasonable and good-faith dispute, all unpaid invoices are subject to interest rate of 8% per annum above the base rate of the Bank of England on any outstanding balance, or the maximum permitted by law, whichever is less, until paid in full plus all expenses of collection.

 

3.7 Secure Sockets Layer (“SSL Certificate)” - For Professional and Enterprise clients, when your recruitment website goes live we will apply an SSL Certificate which will be valid for 12 months (this is included in your initial onboarding fee). When your SSL Certificate is due for renewal we will renew and install the new SSL Certificate at a price of £95. You will be issued with an invoice for this approximately 4 weeks before the renewal is due. If this invoice is not settled in full before the renewal date, Firefish Software may, at its sole discretion, refuse to renew the SSL Certificate.

 

3.8 SMS & VOIP Subscriptions – Similar to the monthly licence subscriptions, SMS & VOIP subscriptions must be paid for via direct debit or credit card. Payment for SMS & VOIP Subscriptions will also be collected on your renewal date. If you are setting up a subscription for the first time, charges will be billed pro rata in line with your renewal date. SMS & VOIP Top Ups can be purchased at any time and will be billed within 7 days of purchase.

 

3.9 VAT & Refunds - All Fees are non-refundable, and any charges are exclusive of VAT.

 

 

4. Customer Support

 

Support is the service offered by us and comprises general advice on routine use of and ways of maximizing your benefit from Firefish Software. Firefish Software Support shall also compose advice on any technical issues encountered during the implementation and administration of Firefish Software. 

 

4.1 Business Hours - The operating hours for support are Monday to Thursday 09:00 GMT to 17:30 GMT and Friday 09:00 GMT to 16:30 GMT, with the exception of New Year's Day, Easter Monday, Early May Bank Holiday, Spring Bank Holiday, Christmas Day and Boxing Day, when the support desk will be closed.


4.2 Support Channels - Support shall be provided through our online community, the Fish Tank (our online customer knowledge base), phone and email (support@firefishsoftware.com). It is our aim to resolve all support queries in line with our Service Level Agreement - SLAs.

 

4.3 Support Provided - For the avoidance of doubt, no on-site maintenance or consultancy support is provided unless separately agreed with Firefish Software

 

4.4 Support Requests - Support can only be provided to active User License(s) users.

 

 

5.  Third Party Providers 

 

5.1 Links to Third Party Sites - The Services may contain links to third-party websites (“Linked Sites”). Linked Sites are not under our control and we are not responsible for the contents of any Linked Site, including without limitation any link contained in a Linked Site, or any changes or updates to a Linked Site. We are not responsible for any form of transmission received from any Linked Site. The Linked Sites are provided to you only as a convenience, and the inclusion of any Linked Site does not imply endorsement by us of the Linked Site or any association with its operators.

 

5.2 Application Programming Interfaces (APIs) - The Services may include access to third party APIs. You acknowledge and agree that Firefish Software may, in its sole discretion, limit, throttle, suspend or terminate your access to or usage of APIs, or change any of the API specifications, protocols, or methods of access for any or no reason, and Firefish Software will bear no liability for such decisions. It is solely your responsibility at all times to backup your data and to be prepared to manage your accounts and conduct your business without access to the APIs. FIREFISH SOFTWAREDOES NOT REPRESENT OR WARRANT, AND SPECIFICALLY DISCLAIMS, THAT ANY API'S WILL BE AVAILABLE WITHOUT INTERRUPTION OR WITHOUT BUGS.

 

6. Data Ownership & Storage 

 

6.1 Ownership - You retain all right, title and interest to any and all data provided, inputted or uploaded to Firefish Software by you or by us on your behalf. Firefish Software has no right, title or interest in any personally identifiable data related to your candidates or employers. Firefish Software shall retain all right, title and interest in the Firefish Software Services, the documentation for Firefish Software, and all modifications and/or enhancements to Firefish Software, regardless of the source of inspiration for any such enhancement or modification and regardless of whether you have provided input regarding such modifications and/or enhancements. You acknowledge that Firefish Software will retain all right, title and interest to transactional and performance data related to use of Firefish Software which Firefish Software may collect, use and disclose for its business purposes (including software use optimization and product marketing) provided that such use does not reveal, any of your confidential information or any personally identifiable candidate information that belongs to you.

 

6.3 Storage – Each Subscription comes with a storage allowance of 10,000 people records (includes contacts and candidates) Thereafter each User License includes an allowance of an additional 5,000 people records. Any additional records beyond your Subscription allowance will be charged at the monthly rate of £5 per 5,000 records

 

 

7. EU Data Processing

From May 25 2018, where a Firefish Software customer and operating as a “data controller” as defined in the General Data Protection Regulation (GDPR) in your use of the Services, the terms “personal data,” “data subject,” “processing,” and “processor” shall have the meanings given to those terms respectively in the GDPR. Firefish Software shall process all personal data on your behalf in accordance with the Data Processing Agreement and which you shall be deemed to have agreed to by using our Services.

 

7.1 Customer Obligations - You shall ensure and hereby warrant and represent that you are entitled to transfer personal data to Firefish Software so that Firefish Software may lawfully process and transfer the personal data in accordance with these Terms and the Data Processing Agreement.

 

7.1.1 Data Subjects - You shall ensure that relevant data subjects have been informed of such use, processing, and transfer as required by all applicable data protection laws and you have sole responsibility for the accuracy, quality and legality of personal data processed by Firefish Software in the provision of the Services. You shall further ensure that you have established a lawful basis for processing all personal data which is transferred to Firefish Software.

 

7.2.2 Unauthorized Access - You shall notify Firefish Software immediately of any unauthorized use of accounts (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by you) or any other breach of security. Firefish Software will not be liable for any loss or damage arising from your failure to comply with these requirements.

 

7.2.3 Passwords - You will choose or be given all applicable passwords to use in connection with the Service. You are responsible for maintaining the confidentiality of your passwords and account (including, if applicable, the passwords and accounts of each user accessing the Service by means of an account established by you). Furthermore, you are responsible for any and all activities that occur under your account (including, if applicable, the accounts of each user accessing the Service by means of an account established by you). Each password may be used by one individual named person only. Passwords may not be used concurrently or shared by more than one individual named

 

7.2 Firefish Obligations - Where Firefish Software is processing personal data on your behalf, it will:

 

7.2.1 Documented Instructions - Only do so on your documented instructions and in accordance with applicable law;

 

7.2.2 Confidentiality - Ensure that all Firefish Software personnel involved in the processing of personal data have committed themselves to confidentiality;

 

7.2.3 Compliance - Where applicable to you and where it is technically feasible, make available information necessary for you to demonstrate compliance with your obligations under Article 28 of the GDPR, where such information is held by Firefish Software and is not otherwise available to you through your system with at least 14 days’ written notice of such an information request;

 

7.2.4 Deletion - Upon deletion by you, not retain personal data from within your system other than in order to comply with applicable laws and regulations and as may otherwise be kept in routine backup copies made for disaster recovery and business continuity purposes (which are also deleted no later than 28 days after data is deleted from your system); and

 

7.2.5 Impact Assessment - To the extent reasonably able, assist you as reasonably required (at your expense) where you wish to conduct a data protection impact assessment involving the Services.

 

 

8. Security Measures or Incident

 

8.1 Privacy by Design - Firefish Software has implemented appropriate technical and organizational measures to ensure a level of security appropriate to the risk of unauthorized or unlawful processing, accidental loss of and/or damage to your personal data and has specified in our Trust Statement, which is incorporated by reference into these Terms. At reasonable intervals, Firefish Software tests and evaluates the effectiveness of these technical and organizational measures for the purpose of ensuring the security of the processing.

 

8.2 Security Incident - If Firefish Software becomes aware of any unauthorized or unlawful access to, or acquisition, alteration, use, disclosure, or destruction of, personal data (“Security Incident”), we will take reasonable steps to notify you without undue delay. Firefish Software will also reasonably cooperate with you with respect to any investigations relating to a Security Incident; preparing any required notices and providing any other information reasonably requested by you in relation to any Security Incident, where such information is not already available to you in your system or online through updates provided by Firefish Software.

 

8.3 Audits Requests - You will allow one month for Firefish Software to respond to any audit request that you make. No person/party conducting an audit on your behalf shall be, or shall act on behalf of, a competitor of Firefish Software (“Auditor”). You will only be entitled to conduct an audit once per year (during the course of a 12 month subscription) unless otherwise legally compelled or required by a regulator with established authority over you to perform or facilitate the performance of more than 1 audit in that same year (in which circumstances you and Firefish Software  will, in advance of any such audits, agree upon a reasonable reimbursement rate for Firefish Software’s audit expenses).

 

The scope of an audit will be as follows (unless you are compelled by a regulator with authority over the processing activities involving the Services to vary this format for audit):

 

8.3.1 Documentation - Firefish Software agrees, subject to any appropriate and reasonable confidentiality restrictions, to provide evidence of any certifications and compliance standards it maintains and will, on request, make available to you an executive summary of Firefish Software’s (or Firefish Software affiliates’) most recent penetration tests, which summary shall include remedial actions taken by Firefish Software resulting from such penetration tests.

 

8.3.2 Penetration Test & Audits - The scope of the certifications and penetration tests provided will be limited to Firefish Software systems, processes, and documentation relevant to the processing and protection of personal data undertaken for the Services obtained by you, and Auditor will conduct audits subject to any appropriate and reasonable confidentiality restrictions requested by Firefish Software.

 

8.3.3 Security Concerns - You will promptly notify and provide Firefish Software with full details regarding any perceived non-compliance or security concerns discovered during the course of an audit.

 

The parties agree that, except as otherwise required by order or other binding decree of a regulator with authority over you, this section sets out the entire scope of your audit rights.

 

9. Limitations of Use

 

9.1 Restrictions - You shall not, directly or indirectly, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms of Firefish Software; modify, translate, or create derivative works based on Firefish Software or authorize any third party to do so; rent, lease, assign, or otherwise transfer rights to Firefish Software; use Firefish Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; obfuscate, remove or alter any of the logos, trademarks, internet links, patent or copyright notices, confidentiality or proprietary legends or other notices or markings that are on or in Firefish Software or the related documentation; or send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs. Because Firefish Software is proprietary, you agree not to publish or disclose to third parties any evaluation of Firefish Software without our prior written consent.

9.2 Prohibited Users - You agree to only use the Service for lawful purposes, in compliance with all applicable laws including (without limitations) copyright, trademark, obscenity and defamation laws. Unlawful activities may include (without limit) storing, distributing or transmitting any unlawful material, attempting to compromise the security of any networked account or site, or making direct threats of physical harm. You agree to defend, indemnify and hold Firefish Software harmless against any claim or action that arises from your use of the Service in an unlawful manner or in any manner inconsistent with the restrictions and policies stated herein.

9.3 Third-Party Contractors - You may make the Service available for use by third-party contractors used by you solely to assist in your resource management efforts ("Third-Party Contractor"), within the limits of the usage rights and restrictions set forth in these terms. You are responsible for the use of the Service by such Third-Party Contractors, including compliance with these terms to the same extent as if the Third-Party Contractor were your employee. You agree that any password provided to a Third-Party Contractor will be disabled immediately upon conclusion of such Third-Party Contractor's work for you.

9.4 Ethical Hacks - You shall not and shall not allow anyone working on your behalf to (i) perform any technical security integrity review, penetration test, load test, denial-of-service simulation or vulnerability scan without Firefish Software's prior written consent, or (ii) attempt to access the data of another Firefish Software customer. You shall not and shall not allow anyone working on your behalf to use any software tool designed to automatically emulate the actions of a human user (such tools are commonly referred to as "Robots") in conjunction with the Firefish Software Service. Such programs are commonly used for the purpose of data entry, data loading, data migration, load testing, performance testing, performance monitoring, performance measuring and stress testing. If you or anyone working on your behalf uses a Robot, including those listed above or other similar programs, with the Firefish Software Service for the purposes listed above or any other purpose, it shall constitute a material breach of these terms. You shall indemnify and hold Firefish Software harmless without limitation from any damages, losses, claims, costs, expenses or liabilities arising from downtime, production incidents or other technical problems arising during a time period in which you are in breach of this provision or as a result of your breach of this provision, including (without limitation) damages or credits to Firefish Software customers arising from downtime and costs, including third party costs, related to the correction of such downtimes, production incidents or other technical problems.

9.5 Anti-Spam - Firefish Software incorporates email marketing functionality. In using these features, you warrant that you are aware of and adhere to all applicable laws governing spam email. You may not use the Service for spamming, chain letters, junk mail or distribution lists to contact any person who has not given specific permission to be included in such lists. You agree not to transmit, or permit your employees to transmit, through the Service any unlawful, harassing, libellous, abusive, threatening, vulgar, obscene or otherwise objectionable material of any kind. Firefish Software may suspend or terminate your access to Services without notice if you are found to be using the Service in a way that breaks applicable law, regulation, or these terms.

 

9.6 Intellectual Property – Firefish Software shall retain ownership of all intellectual property rights in and to Firefish Software and the Service and shall acquire all intellectual property rights howsoever arising in connection with the provision of the Service.

 

10 Notice & Cancellations

 

10.1 Monthly Subscription – To cancel individual user licence(s) you can do so by providing 30 days’ notice in writing.   Monthly subscribers cannot be swapped to another user Licence and must go on 30 days’ notice with a new User Licence set up. Notice charges will be applied pro rata and charged on the renewal date by your preferred payment method.

 

10.2 Annual or Biannual Subscription – Can swap a purchased named User Licence to another named User License at any time, with no notice charge.

 

10.3 Cancellations - If you wish to cancel your subscription outright, a minimum of 60 days’ notice must be given prior to your renewal date; otherwise, your subscription will automatically be renewed at your current Subscription level (Monthly, Annual and / or Biennial) and payable in full.

On Cancellation Firefish Software, at its sole discretion, may delete all your data, images, content, in line with our Data Processing Agreement

 

10.4 Fraudulent or Delinquent Payment - If you pay by fraudulent means, Firefish Software reserves the right to immediately and permanently terminate your access to the Service, with no liability to you, no obligation to return your data, and possibly seek criminal penalties. In the event that your account is delinquent, or you have failed to may any other payments due to Firefish Software. Firefish Software reserves the right to suspend your access to the Service, with no liability to you, until such amounts are paid in full. For credit card payments, an account will be considered delinquent if your credit card company refuses for any reason to pay the amount billed to it and that amount remains unpaid 30 days following the billing cycle. You agree that Firefish Software may impose a charge to restore archived data from delinquent accounts.


10.5 Bankruptcy or Insolvency - Firefish Software will automatically and immediately end your subscription without refund if you become bankrupt or your business is not able to pay its debts, stops trading or becomes insolvent or, if we are notified that any finance arrangement you have made with another party in relation to the Service has ended for any reason other than the finance being paid in full.

 

10.6 Material Breach - Either party shall be entitled to terminate the Agreement immediately on giving written notice to the other if the other party is in material breach of the Agreement which breach is irremediable or, if remediable, is not remedied by the defaulting party within 14 days of being requested to do so, in writing, by the other party.

 

10.7 Communication - The parties agree that any notices of a dispute or other communications addressed to us will be sent by certified or registered mail, return receipt requested to the Registered company address of Firefish Software and deemed delivered as of the date of signing of the return receipt or the first date of a refusal to sign.

 

11. Disclaimer, Limitation of Liability and Infringement & Indemnity

 

11.1 Disclaimer - The Service is provided "as is" without warranty of any kind, and Firefish Software disclaims all warranties, either express or implied. Any material downloaded or otherwise obtained through use of the Service is at your own risk and you will be solely responsible for any damage to your computer system or network, or any loss of data that results from your use of the service.

FIREFISH SOFTWARE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.


11.2 Limitation of Liability - Each party's total liability with respect to your Agreement with Firefish Software and these terms (including, but not limited to, liability arising out of the contract, tort, strict liability, and breach of warranty) will be limited to the fees paid by you to Firefish Software for the Service under these terms in the 12 months prior to the act or omission of injury that gave rise to the liability.


Neither party shall be liable to the other in any event for loss or inaccuracy of data, loss of profits or revenue, or indirect, special, incidental, or consequential damages (including, without limitation, the cost of any substitute procurement), whether or not foreseeable and even if the party has been advised of the possibility of such damages.


11.3 Infringement and Indemnity - Firefish Software shall, at its expense, defend or, at its option, settle any claim, action or allegation brought against you that Firefish or any deliverable infringes any valid copyright, patent, trade secret, or any other proprietary right of any third party and shall pay any final judgments awarded or settlements entered into; provided that you give prompt written notice to Firefish Software of any such claim, action or allegation of infringement, give Firefish Software the authority to proceed as contemplated herein; and that any steps to defend or settle any claim, action or allegation shall be only be taken with the full knowledge and written consent of Firefish Software.


Firefish Software will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and you may not settle or compromise such claim, action or allegation, except with prior written consent of Firefish Software. You shall assist and provide information as Firefish Software may reasonably require in settling or opposing such claims. In the event any infringement claim, action or allegation is brought or threatened, Firefish Software may, at its sole option and expense (i) procure for you the right to continue use of Firefish or infringing part thereof; or (b) modify or amend Firefish or infringing part thereof; or (c) replace Firefish or infringing part thereof with other software having substantially the same or better capabilities; or (d) terminate these terms and refund to you the prorated amount of the fees prepaid by you that were to apply to the remainder of the unexpired term, as calculated from the termination date through the remainder of the unexpired term.

The foregoing obligations will not apply to the extent the infringement arises as a result of (a) any use of Firefish in a manner other than as specified in these terms; (b) any use of Firefish in combination with other products, equipment, devices, software, systems or data not supplied by Firefish Software to the extent such claim is directed against such combination; or (c) any alteration, modification or customization of Firefish made by any party other than Firefish Software or the authorised Firefish Software representative if such infringement would not have occurred without such modification or combination. This section states the entire liability of Firefish Software with respect to infringement of any patent, copyright, trade secret or other intellectual property right.

 

12 Law and Jurisdiction

 

12.1 The Agreement (including the annex hereto) and any disputes or claims arising out of or in connection with their subject matter or formation shall be governed by and construed in accordance with the law of Scotland and you and Firefish Software submit to the exclusive jurisdiction of the Scottish court