Shireburn Indigo Mobile App Terms and Conditions of Use
This is an agreement between yourself (“You”, “Your”) and Shireburn Software Ltd (“Shireburn”, “Us,” “We,” “Our”) and its Affiliates setting out the terms and conditions of use (“Terms”) of the Shireburn Indigo Mobile application (the “App”), which Terms come into effect on electronic acceptance of the Terms within the App until terminated in accordance with these Terms.
These Terms are additive to the Software-as-a-Service Agreement (the “SaaS Agreement”) previously entered into between Shireburn and the company or organisation to which you are related and/or employed (referred to as your “Organisation”) which also binds Your use of Indigo and, where a conflict arises between the Terms and the SaaS Agreement, the SaaS Agreement shall prevail and you shall be bound by the SaaS Agreement.
The Terms regulate and govern Your use and access to the Shireburn Indigo Mobile app (the “App”), and any text, images, graphics, videos, information or materials which form part of the App (hereinafter referred to as “Content”).
Your access to and use of the App and the Content is expressly based on your agreement and compliance with these Terms. By using the App and accessing the Content, you are expressly agreeing to be bound and governed by these Terms.
Use of Services
The App is a mobile application that allows you to interact with Shireburn Indigo (the “Platform”), which forms part of the Indigo Suite family of software products. Indigo Mobile works directly with the Platform and enables You to manage and view Your attendance recording, shift allocations, and other features related to payroll and time & attendance functionality (the “Services”).
These Services are subject to the availability of a subscription, including a license to use, to the Platform and/or the App entered into by the company or organisation to which you are related, and may change from time to time, and the Services (or any features within the Services) may stop or be stopped, temporarily or permanently, to You or to other users generally, with or without prior notice.
Non-Exclusive License to the Services
Subject to your continued compliance with these Terms, We hereby grant to You a non-exclusive and non-transferable single-user license to download and install one (1) copy of the App on Your mobile device, tablet and/or computer, and to access and use the App, solely and purely for Your own personal use.
In the grant of this Non-Exclusive License You may not: (i) reproduce, modify or distribute the App for any purpose other than operational back-ups; (ii) sublicense, assign, transfer, lease, lend, rent or otherwise distribute the App to any third party or any other user; (iii) decompile, reverse-engineer, disassemble, or create derivative works of the App or Services; (iv) provide access to this App to third-party entities (v) use the App for any unlawful or illicit purpose or in any manner which is inconsistent with these Terms.
Upon downloading the mobile App through the Apple App Store, Google Play or any other similar app store or distribution platform (the “App Provider”), you expressly agree, acknowledge and understand that:
- These Terms are concluded between Shireburn and You, and not with the App Provider, and that Shireburn (not the App Provider), is solely responsible for the App and the content thereof;
- The App Provider has no obligation to provide maintenance and/or support services in relation to the App and such responsibility remains Shireburn’s;
- Shireburn is solely responsible for product warranties, both express or implied, and in the event of any failure to meet any warranties, Shireburn shall remain solely responsible within the parameters set in the Software As A Service Agreement entered into between Shireburn and the organization, and the App Provider shall have no other warranty obligation whatsoever with respect to the App, and any other claims, losses, liabilities, damages, costs or expenses attributable to the App’s failure to conform to any warranty, which remains Shireburn’s sole responsibility.
- The App Provider is not responsible for addressing any claims You may have or any claims of any third-party relating to the App, such as, product liability claims, consumer protection claims, intellectual property infringement claims, or any claim that our App fails to conform to any applicable legal or regulatory requirement;
- In the event of any third-party claim that the App or Your Use of the App infringes third party intellectual property rights, Shireburn and not the App Provider, will be solely responsible for the investigation, defence, settlement and discharge of any such intellectual property infringement claim.
- You are not located in a country that is subject to a European Union or United State of America Government embargo, or that has been designated by the European Union or the United States Government as a “terrorist supporting” country, and You are not listed on any U.S. Government list of prohibited or restricted parties.
- You must comply with all applicable third-party terms of agreement when using the App.
- The App Provider and any of the App Provider’s subsidiaries, are third-party beneficiaries of these Terms, and upon Your acceptance to these Terms, the App Provider shall have the right to enforce these Terms against You as a third-party beneficiary thereof.
Refusal of Terms of Service
You individually forfeit your rights to the App and the Service provided by the App when you:
- Refuse to enable location sharing for the App on your mobile device.
- You breach one or more of the Terms.
In order to access the App, use or receive the Services, You will need to have an account (“Account”) created for you on Shireburn Indigo by the Organization and You must be authorised by the Organization to use the App and be of legal age to enter into a binding contract and are not a person barred from receiving Services under the laws of your applicable jurisdiction. You also warrant that the information provided to Us is correct and accurate.
While using the App You may be asked to provide Us with personal information about yourself and to use a username and password. Shireburn reserves the right to terminate or suspend Your Account if any information provided during registration or thereafter is inaccurate, misleading, incorrect or untrue or if the subscription entered into by Your Organisation has expired.
You remain solely and exclusively responsible to safeguard and protect your password that is linked to your Account and for any act carried out through Your Account, whether carried out by You or others using Your Account, whether authorised or unauthorised. Shireburn shall not be held liable or responsible for any loss or damage arising from your failure to abide by these requirements.
By using this App, you also agree for your mobile device ID to be registered. Section 4 outlines the responsibility of the storage and safekeeping of data related to your mobile device ID and geolocation.
You consent to allow the App, subject to our Data Protection policies, to record Your location information on using the clocking functionality of the App and to send this information to the Indigo Platform together with this clocking data where it may be used by Authorised Users of Your Organization.
Data storage and protection
Your Organisation is the “Data Controller” and Shireburn is the “Data Processor” and each has responsibilities, including those related to Data Protection, as defined within the Software-as-a-Service Agreement entered into by Shireburn and Your Organisation and in Shireburn’s Data Protection Policy.
Clocking related data is retained on Your mobile device and then synchronised with the Indigo Platform using an encrypted connection when connectivity is established.
You accept that the App will retain personal data such as your username, your mobile device identification code, and your geolocation information, which data will be submitted to the Indigo Platform.
Your mobile device
We make no warranties as to:
- The availability of your mobile telecommunication services from your mobile provider at any time or from any location;
- The failure of clocking or geolocation data stored offline syncing with Indigo Mobile data servers because of the faltered performances of your mobile device’s telecommunication service or Wi-Fi.
- The failure to transmit geolocation data because of the faltered performance of your device’s location-sharing functionality.
- The failure to transmit clocking data and geolocation because of Wi-Fi issues affecting your mobile device.
- Any losses, damages, or security breaches via mobile telecommunication services.
Termination of Service
Shireburn retains the right to terminate Your access to the App and Services when:
- the subscription of Your Organization to the Services expires, is suspended or is terminated;
- We detect one or more violations of the Terms;
- there is a breach in applicable Data Protection Laws;
- The Service is discontinued.
Updates to this Terms of Service
Shireburn retains the right to modify the Terms, giving notice of such change on next login, and providing the opportunity to You to read and then accept or otherwise these Terms.
Third-Party Service Provider Fees
You remain solely responsible for the payment of any fees, charges and rates charged by Your mobile carrier, including for data and messaging plans that You may need or use to use our App or the Services.
While using the App you also expressly agree and warrant not to do any of the following:
- attempt to access, tamper with, or use non-public areas of the App, the App Systems, or technical delivery systems of the App’s providers;
- use the Contents and/or Services for any commercial, professional, consultancy or advisory purpose or in any manner which is contrary to these T&Cs;
- use the Contents and/or Services for any purpose which violates any applicable law or regulation;
- order, instruct or assist any other user to do any of the foregoing.
Shireburn reserves all rights at law to investigate violations of any of the above and to cooperate with and assist law enforcement authorities in prosecuting users who violate the above Warranties.
The App and the Services are the intellectual property of Shireburn and are protected by copyright, trademark, and other intellectual property rights and Shireburn exclusively own all right, title and interest in and to the App and Services, including all associated intellectual property rights.
Throughout your use of the App, You will not remove, alter, delete or obscure any copyright, trademark, service mark, design or other proprietary rights or notices present or depicted in the Services.
Subject to your compliance with these Terms, Shireburn is granting you a limited, non-exclusive and non-transferable license (without the right to sublicense) to access and make use of the App and associated Services and to download, save and print any Content provided by the App solely and exclusively for your own personal use.
You agree not to use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sub-license, sell, transfer, publish otherwise use or exploit the App, Services or Content provided through the Services, except as expressly permitted in these Terms.
No licenses or intellectual property rights are granted to you expressly or by implication or otherwise under any intellectual property rights owned or controlled by Shireburn, except for rights as expressly provided in terms of these Terms.
Termination of Use
You can terminate usage of the App at any point in time by deleting the App, deactivating your Account or giving Us notice of termination. In case of any breach or non-compliance with these Terms, Shireburn reserves the right to suspend, disable or terminate your access to the Services, at Its sole discretion and without prior notice to You.
Shireburn shall not be held liable to You or any third party for suspension and termination of Your access or use of the Services. Any suspension or termination will not affect your obligations to Shireburn under these Terms (including, without limitation, ownership, confidentiality, indemnification and limitation of liability), which shall survive suspension or termination of your Use or Service.
Content and Services are available on an “AS-IS” basis
Through your Use of the App and Services, you hereby acknowledge, agree and understand that the App and Services, as well as any information provided through the Services, are being provided to You on an AS-IS and AS- AVAILABLE basis.
WITHOUT ANY LIMITATION , SHIREBURN EXPLICITLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, RELATING TO THE SERVICES AND APP, INCLUDING WITHOUT LIMITATION THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PEACEFUL POSSESSION AND ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD SHIREBURN, ITS OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, HARMLESS FROM AND AGAINST ANY CLAIMS, LIABILITIES, DAMAGES, LOSSES, AND EXPENSES, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL FEES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE AND ACCESS TO THE CONTENT AND/OR SERVICES OR YOUR VIOLATION OF THESE TERMS.
Limitation of Liability
YOUR PERSONAL USE OF THE APP AND SERVICES REMAINS AT YOUR SOLE AND EXCLUSIVE DISCRETION AND RISK.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SHIREBURN AND ITS SUBCONTRACTORS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, LICENSORS AND LICENSEES WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGE, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, ARISING OUT OF THE USE OF THE APP OR SERVICES IN CONNECTION WITH (I) ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE APP, CONTENT OR SERVICES; (II) ANY CONTENT OBTAINED FROM THE SERVICES; (III) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT SHIREBURN HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
Jurisdiction & Dispute Resolution
This Agreement and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by, and construed in accordance with, the law of the Republic of Malta.
YOU agree that any dispute, controversy or claim arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be settled by arbitration in accordance with the rules of the Malta Arbitration Centre in force at the time of the dispute. It is also agreed that:
- the appointing authority and administrator shall be the Malta Arbitration Centre
- the number of arbitrators shall be one
- the place of arbitration shall be Malta.
- the applicable substantive law shall be the laws of Malta
These Terms shall be governed by and construed in accordance with the Laws of Malta, without regard to any conflict of laws rules or principles. Shireburn’s failure to enforce any right or provision arising out of these Terms shall not be deemed or considered to be a waiver of such right or provision. In the event that any provision of these Terms is held to be invalid or unenforceable at law, the remaining provisions of these Terms shall survive and shall remain in full force and effect.
These Terms may be revised from time to time, with Shireburn notifying you through the App on Your next use of the App, to allow acceptance of the new Terms or Your rejection of continued usage of the App. Such rejection would require you to delete the App from your mobile device. Through Your continued use of the App and access to the Content and Services after the revision of these Terms, You agree to be bound by the revised Terms.
The App is owned by Shireburn Software Limited, with registered office at Skyparks Business Centre, 3rd Floor, Malta International Airport, Luqa, Malta. If you have any questions about these Terms please contact us on firstname.lastname@example.org, call us on [+356 21319977].
Last Updated: 4th December 2019