DBS SOLUTIONS AGREEMENT – TERMS AND CONDITIONS
1 Stop Rec Limited is company trading as DBS Solutions, (company number 06620231) whose registered office is at 30 Milton Road, Westcliff on Sea, Essex, SS0 7JX (“DBS Solutions”).
IMPORTANT NOTICE TO ALL USERS:
UPON REGISTRATION AND USE OF THE SERVICE THE CUSTOMER AGREES TO THESE TERMS AND CONDITIONS SET OUT WITHIN THIS DOCUMENT. THE TERMS OF THIS LICENCE INCLUDE, IN PARTICULAR, LIMITATIONS ON LIABILITY IN CLAUSE 12 LIMITATION OF LIABILITY.
IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, YOU MUST NOT ACCESS THIS SERVICE.
1.0 INTERPRETATION AND DEFINITIONS
1.1. The definitions and rules of interpretation in this clause apply in this agreement.
Agreement understanding, and acceptance of reciprocal legal rights and duties as defined in these Terms & Conditions.
Applicable Laws applicable laws, statute and regulations of England and Wales having the force and effect of law and the laws of any member of the European Union or the laws of the European Union applicable to the Provider in relation to personal data.
Applicant the individual whose details are provided to enable an online vetting and screening check.
Application an application by an individual to carry out DBS vetting and screen check of an Applicant.
Applicant Data the data inputted by or on behalf of the Customer, Authorised Users Applicant or DBS Solutions on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services and any data obtained from the Applicant in relation to the Authorised Users.
Authorised Users the Customer and if the Customer is a company those employee who are authorised by the Customer to use the Services.
Code of Practice means either:
(a) Revised Code of Practice for Disclosure and Barring Service Registered Persons November 2015; or
(b) Disclosure Scotland Code of Practice in connection with the use of disclosure information and with the functions of registered persons 28 February 2011 Edition.
as amended from time to time.
Commencement Date means the date on which the Customer is given access to the Services by DBS Solutions.
Confidential Information all confidential information (however recorded or preserved) disclosed by a party to the other party, concerning all information that would be regarded as confidential by a reasonable business person relating to the business, finances, transactions, trade secrets, customers, suppliers, intentions, processes, know-how, databases and software of the disclosing party including any information or analysis derived from the Confidential Information but shall exclude, information:
(a) generally available to the public (other than as a result of breach of confidentiality obligations);
(b) available or which comes available to the receiving party on a non-confidential basis before disclosure; or
(c) independently developed without access to such Confidential Information.
Customer “ the person or firm who purchases Services from DBS Solutions.
Customer Materials all materials, information, data, documents and any other media and assistance provided by the Customer to DBS Solutions from time to time.
Data Protection Legislation (a) until the GDPR is no longer directly applicable in the UK, the GDPR and any national implementing laws, regulations and secondary legislation, as amended or updated from time to time, in the UK, including the Data Protection Act 2018 when implemented; and
(b) then any successor legislation to the GDPR or the Data Protection Act 1998.
Fees the fees payable by the Customer and/or the Applicant to DBS Solutions for the Services, as set out in Schedule 1.
Forecast where a Customer is a corporate entity, the number of applications the Customer intends to make via the Service within the following twelve months from the date of that forecast.
GDPR the General Data Protection Regulation ((EU) 2016/679).
ICO Information Commissions Office UK authority set up to uphold information rights.
Optional Services any additional services provided by DBS Solutions through the website
Permitted Purpose the purpose of Authorised Users accessing the Services in accordance with terms of this Agreement.
Personal data means data which relate to a living individual who can be identified.
Public Network a public communications network (which may be established and operated by a telecommunications provider), including the internet, wireless and mobile technologies.
Primary Contact the individual designated by the Customer (in writing) to liaise with DBS Solutions in respect of this agreement and/or the Services.
Results the results made available to the Customer, Applicant or the Authorised User.
Retainer an advance payment the value of which shall be agreed in writing between DBS Solutions and the Customer.
Right to Work a legal duty to ensure all Applicants are eligible to work in the UK.
Services means the services to be provided by DBS Solutions pursuant to the terms of this Agreement including Disclosure and Barring Service (DBS), Disclosure Scotland (DS) and Identity (ID), together with any other services which DBS Solutions may offer to the Customer from time to time.
Service Levels the service levels to which the Services are to be provided as set out in Schedule 3.
Special Categories of Data is personal data which is more sensitive and requires more protection.
Support Policy the support policy set out on the Website, as may be amended from time to time.
Term the term of the agreement as defined in clause 2.1.
Website www.dbscheck.org or any other website of the Company notified from time to time.
Working Day a day (other than a Saturday or Sunday or Bank holiday in England, Scotland or Wales). Working Hours Monday to Friday inclusive (excluding Bank and Public holidays in England) between the hours of 8.30 am – 4.45pm.
1.2. Unless the context otherwise expressly requires:
1.2.1. references to “including” or “includes” shall be deemed to have the words “without limitation” inserted after them;
1.2.2. writing or written includes e-mail; and
1.2.3. reference to a clause, Annex or Appendix is a reference to a clause of, or Annex or Appendix to, this agreement.
1.3. Clause, Schedule and Appendix headings do not affect the interpretation of this agreement.
1.4. In the case of conflict or ambiguity between the provisions of this agreement, the conflict or ambiguity shall be resolved in accordance with the following order of precedence:
1.4.1. Schedule 1 (Fees);
1.4.2. Terms and Conditions (Agreed Terms); and
1.4.3. any applicable Appendices.
1.5. The Customer acknowledges and accepts that these Terms and Conditions apply to the Agreement to the exclusion of any other terms that the Customer seeks to impose or incorporate, or which are implied by trade, custom, practice, or course of dealing.
2.0 COMMENCEMENT AND DURATION
2.1. This agreement shall commence on the date the Customer accesses the website known as www.dbscheck.org and continue unless terminated in accordance with clause 14 Termination.
2.2. By signing up to this agreement, the Customer is agreeing to receive service emails from DBS Solutions. Service emails contain vital information about the operation of DBS Solutions, its systems and the Services. In order to provide the Services to you, DBS Solutions needs to be able to send service emails which may contain information relating to DBS Solutions system updates, updates to DBS Solutions Terms and Conditions, information on product development and process updates. You cannot opt out of service emails.
3.0 LICENCE TO USE
3.1. In consideration of the payment of the Fees, DBS Solutions hereby grants to the Customer a non – exclusive, revocable, licence to permit the Authorised Users and the Applicant to use the Services and the Results during the Term solely for Permitted Purpose.
3.2. The Customer may not nor permit others to:
3.2.1. use, copy, modify or access the Services (including any related documentation) or any copy, in whole or in part, including any print-out of all or part of any database, except as expressly provided for in this agreement;
3.2.2. translate, reverse engineer, decompile, disassemble, unbundle, modify or create derivative works based on the website, except as expressly permitted by law or the terms of this agreement; or
3.2.3. vary, delete or obscure any notices of proprietary rights or any product identification or restrictions on or in the website.
3.3. The Customer undertakes to:
3.3.1. procure that each Authorised User and Applicant (if applicable) will keep a secure password for their respective use of the Services which will be kept confidential and will ensure that such passwords shall be changed on a regular basis;
3.3.2. in the event of potential fraudulent activity, the Customer shall permit DBS Solutions to audit the Services in order to establish the name and password of each Authorised User. Such audit may be conducted no more than once per quarter, at DBS Solutions’ expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business;
3.3.3. register each additional subsidiary or location with DBS Solutions and where applicable pay the associated fee to DBS Solutions as specified in Schedule 1 Fees of this Agreement;
3.3.4. prior to initiating checks through the DBS or DS have a written policy on the secure handling of information provided by the DBS and/or DS, electronically or otherwise, in accordance with the requirements within these organisations respective Code of Practice. The Customer shall provide a copy of such a policy to DBS Solutions upon request;
3.3.5. obtain clarification and agreement from an Applicant in relation to any inaccurate or incomplete submissions, prior to making any changes to such data you shall have sought their clarification and agreement to any changes; and
3.3.6. ensure that the relevant proof of identity documents provided by the Applicant are properly cross referenced from face to face contact with the individual or validated by the Post Office Identity Document Checking Service to establish their identity in accordance with any relevant guidelines associated with a particular check.
3.4. The integrity of the website is protected by technical protection measures so that the Intellectual Property rights in the website are not misappropriated. The Customer must not attempt in any way to remove or circumvent such technical protection measures, nor to apply, manufacture, import, distribute, sell, let for hire, offer, expose or advertise for sale for hire or have in its possession for private or commercial purposes, any means whose sole purpose is to facilitate the unauthorised removal or circumvention of such technical protection measures.
3.5. The Primary Contact may increase the number of Authorised Users during the Term without DBS Solutions’ prior written consent. The Customer acknowledges that it shall be bound by any increase in the Authorised Users made by the Primary Contact and agrees to pay any additional Fees if appropriate. The Customer agrees that any Additional Authorised Users will be charged as per Schedule 1 Fees of this Agreement.
3.6. The Customer shall not, without DBS Solutions’ prior written consent:
3.6.1. access all or any part of the Services and Results in order to build a product or service which competes with the Services and/or the Results; or
3.6.2. use the Services and/or to provide services to third parties; or
3.6.3. license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Services and/or Results available to any third party except the Authorised Users; or
3.6.4. attempt to obtain, or assist third parties in obtaining, access to the Services and/or Results, other than as provided under this clause.
3.7. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and/or the Results and, in the event of any such unauthorised access or use, promptly notify DBS Solutions.
3.8. The Customer shall inform DBS Solutions of any authorised users that no longer require access to the system.
4.0 SCOPE OF SERVICES
4.1. DBS Solutions shall, during the Term, provide to the Customer for use by the Authorised Users in accordance with the Permitted Purpose the:
4.1.1. Services; and
4.1.2. Optional Services (if any).
4.2. The Optional Services must only be used in conjunction with the Services.
4.3. Provided that such changes do not adversely affect the Services, DBS Solutions shall be entitled to make changes to the Services from time to time. In addition, to its rights in the previous sentence, DBS Solutions shall be entitled to make changes to the Services from time to time (whether such change adversely affects the Services or not) for the purpose of:
4.3.1. maintaining the security and/or performance and/or availability of the Services;
4.3.2. complying with changes to Applicable Laws; or
4.3.3. complying with the requirements of DBS Solutions key contracts.
4.4. The Customer shall only use the Services for its own internal business purposes.
4.5. DBS Solutions shall use commercially reasonable endeavours to make the Services available 8 hours a day, 5 days a week (Monday to Friday), between the hours of 8.30 a.m.-4.45 p.m. except for Bank Holidays.
4.5.1. DBS Solutions will endeavour to ensure planned maintenance is carried out during the maintenance window of 7.00pm to 6.00am UK time; and
4.5.2. unscheduled maintenance performed outside Working Hours, provided that DBS Solutions has used reasonable endeavours to give the Customer at least 2 Working Hours’ notice in advance.
4.6. DBS Solutions will provide the Customer with DBS Solutions’ standard customer support services during Working Hours in accordance with DBS Solutions’ Support Policy Statement in effect at the time that the Services are provided. DBS Solutions may amend the Support Policy Statement in its sole and absolute discretion from time to time.
5.0 APPLICANT DATA AND DATA PROTECTION LEGISLATION
5.1. For the purpose of this clause “Data Processor”, “Data Subject”, Data Controller”, “Process” and “Personal Data” shall have the meaning set out in GDPR.
5.2. With respect to the parties’ rights and obligations under this agreement, the parties agree that in respect of all Customer Data and Applicant Data, the Customer is the Data Controller, DBS Solutions is the Data Processor and the Applicant is the Data Subject.
5.3. The Applicant shall own all right, title and interest in and to all of the Applicant Data and the Results and shall have sole responsibility for the accuracy and reliability of the Applicant Data.
5.4. The Customer may not complete the paper application on behalf of the Applicant and the Applicant’s consent must be obtained if completing the application electronically. The Customer and the Applicant shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Applicant Data. DBS Solutions hereby disclaims all liability for the results of any checks where the Applicant Data is incorrect or inaccurate.
5.5. The Customer will comply with GDPR and the Data Protection Legislation in all respects. The Customer is responsible for obtaining all necessary consents from the Applicant with regard to transfer of the Applicant’s Personal Data to DBS Solutions. The Customer warrants that it has all necessary and appropriate consents and notices in place to enable the lawful transfer of the Personal Data to DBS Solutions. DBS Solutions will process the Personal Data in accordance with the Customer’s written instructions and upon receiving appropriate consents from the Applicant. The Customer will indemnify DBS Solutions against all claims, losses, fines or damages suffered by DBS Solutions arising out of the Customer’s breach of this clause 5.3.
5.7. DBS Solutions is not providing any opinion in relation to, nor is it warranting the accuracy of, the Applicant Data. The Customer is responsible for decisions taken in relation to or as a result of the Applicant check/s.
5.8. DBS Solutions warrants that is will comply with all applicable Data Protection Legislation.
5.9. DBS Solutions will report data breaches as necessary to the Customer, Applicant and ICO in line with DBS Solutions procedures.
5.10. DBS Solutions will within two Working Days of receiving a complaint or request from a Data Subject under the Data Protection Legislation, forward the complaint or request to the Customer.
5.11. DBS Solutions will assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with the Customer’s obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators.
5.12. DBS Solutions will at the written direction of the Applicant and/or Customer (where permissible under Data Protection Legislation), delete, destroy or return all Personal Data and copies of any Personal Data at the Customer’s cost to the Customer on termination of the agreement unless required by Applicable Laws and DBS Solutions’ data retention policy to store the Personal Data.
5.13. DBS Solutions shall update Applicant Data when the Customer has notified DBS Solutions of any changes.
5.14. The Customer will indemnify DBS Solutions against all claims, losses, fines or damages suffered by DBS Solutions arising out of the Customer’s failure to comply with the Data Protection Legislation and this agreement.
5.15. Where DBS Solutions is processing Personal Data as a Data Processor, DBS Solutions shall:
5.15.1. process the Personal Data in accordance with product selection from the Customer, in accordance with this agreement, the Applicable Laws and to the extent and manner set out in Schedule 4;
5.15.2. implement appropriate technical and organisational measures to protect the Personal Data against unauthorised or unlawful processing and against accidental loss, destruction, damage;
5.15.3. not disclose or transfer the Personal Data to any third party unless necessary for the provision of the Services and the Customer agrees to DBS Solutions using third-party processors where necessary for it to perform the Services and if such transfer is to take place and third -party processors are used it will put in place written contracts that comply with GDPR;
5.15.4. take all reasonable steps to ensure the reliability, competency and integrity of any DBS Solutions personnel who have access to Personal Data; and
5.15.5. DBS Solutions will retain and delete all Applicant Data in line with Data Protection, Storage and Retention Procedure and Applicable Laws.
5.15.6. The Customer acknowledges that DBS Solutions cannot process certain Personal Data outside of the EEA without adequate protection and the consent of the Applicant. No Applicant Data is transferred outside the EEA without adequate protection. The screening service is predominately in the UK.
5.16. DBS Solutions shall preserve the integrity of the Applicant Data and prevent the corruption or loss of Applicant Data in accordance with GDPR. Notwithstanding the previous sentence, the Customer is responsible for taking all necessary back-ups and copies of the Applicant Data to the extent it is under the Customer’s control or possession.
5.17. If the Applicant Data is corrupted or lost as a result of DBS Solutions’ breach of this agreement, the Customer may:
15.17.1. request that DBS Solutions restores (or procures the restoration of) Applicant Data and DBS Solutions shall comply with such a request to the extent reasonably possible; and/or
15.17.2. itself restore (or procure the restoration of) Applicant Data and DBS Solutions shall repay any reasonable expenses incurred in doing so.
5.18. The Customer shall be responsible for ensuring that all Applicant Data provided to DBS Solutions is accurate and complete and, to the extent that the Applicant Data comprises Personal Data, the Customer shall inform DBS Solutions of any changes to such Personal Data.
5.19. The Customer shall be responsible for keeping DBS Solutions informed of Applicant employment status information.
6.0 THIRD PARTY PROVIDERS
7.0 DBS SOLUTIONS OBLIGATIONS
7.1. DBS Solutions undertakes:
7.1.1. that the Services will be supplied with reasonable skill and care and in accordance with Schedule 4; and
7.1.2. to use reasonable endeavours to ensure a telephone helpdesk service is available from 08:30 am to 4.45 pm on any Working Day.
7.2. The undertaking at clause 7.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to DBS Solutions’ instructions, or modification or alteration of the Services by any party other than DBS Solutions or DBS Solutions’ duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, DBS Solutions will, at its expense, use all reasonable endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 7.1. Notwithstanding the foregoing, DBS Solutions:
7.2.1. does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services, Results and/or any other information obtained by the Customer through the Services will meet the Customer’s requirements; and
7.2.2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services and Results may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
7.2.3. is not responsible for any delays, processing delivery failures caused by any third party; and
7.2.4. is not responsible for any errors, mistakes or omissions provided in any data received from any third parties.
This agreement shall not prevent DBS Solutions from entering into similar agreements with third parties, or from independently developing, using, selling or licensing products and/or services which are similar to those provided under this agreement.
7.4. DBS Solutions warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7.5. DBS Solutions is permitted to use the Applicant anonymised Data to undertake system development and testing.
7.6. DBS Solutions shall provide upon request a template of the Policy on the Recruitment of Ex-offenders.
7.7. DBS Solutions shall provide upon request a template of the Handling of DBS/DS certificate information Policy Statement.
7.8. The information provided on our Website and systems is for guidance only and should not be considered as a substitute for obtaining legal, professional and/or regulatory advice.
7.9. If the Customer becomes subject to a regulatory investigation, including an investigation by the Home Office or Border Agency, DBS Solutions shall provide a copy of the relevant data stored on its systems however nothing in this Agreement shall permit any regulatory body to access DBS Solution premises.
7.10. DBS Solutions shall ensure that all necessary IT security accreditation is maintained.
7.11. DBS Solutions employs a Data Protection Officer. All data requests, information requests, opt out of marketing requests are managed and controlled by the Data Protection Officer.
8.0 CUSTOMER’S OBLIGATIONS
8.1. The Customer shall:
8.1.1. provide DBS Solutions with:
126.96.36.199. such reasonable co-operation in relation to this agreement; and
188.8.131.52. such reasonable access to such information as may reasonably be required by DBS Solutions to carry out its obligations in accordance with this agreement;
in order to provide the Services, including but not limited to Applicant Data, and configuration services;
8.1.2. comply with all Applicable Laws and regulations with respect to its activities under this agreement;
8.1.3. comply with all Data Protection Legislation;
8.1.4. The Customer hereby authorises DBS Solutions to process Applicant Data in accordance with Schedule 4;
8.1.5. carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, DBS Solutions may adjust any agreed timetable or delivery schedule as reasonably necessary;
8.1.6. ensure that the Authorised Users use the Services and the Results in accordance with the Terms and Conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
8.1.7. ensure that its network, security and systems during all stages of the check comply with the relevant legislations;
8.1.8. be solely responsible for procuring and maintaining its network connections and telecommunications links to DBS Solutions’ systems, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet; and
8.1.9. if requested provide a true, complete and accurate Volume Forecast on the Commencement Date and from time to time as DBS Solutions requires. The parties agree that DBS Solutions will use the information provided in the Volume Forecast to calculate the relevant Application Fees. DBS Solutions reserves the right to amend the Application Fees due if the Volume Forecast proves to be inaccurate.
8.2. The Customer shall be responsible for ensuring that it complies with its statutory obligations in respect of any Right to Work checks and the Right to Work Services shall not relieve that Customer from any obligations in respect of such Right to Work checks.
8.3. The Customer acknowledges that it is responsible for performing a Right to Work check for all employees and the Services provided by DBS Solutions are complementary to that obligation. Nothing in this Agreement shall transfer any statutory obligations or liability to DBS Solutions in relation to Right to Work checks.
8.4. The Customer shall be solely responsible for ensuring that applications are eligible for processing within 3 months of application creation date and submission for processing. In the event that such applications are not completed within the aforesaid three-month timeframe, DBS Solutions may delete /destroy such applications from its systems in accordance with its internal data retention policy and GDPR. DBS Solutions shall issue a refund to the Customer in respect of each cancelled application within 10 Business Days if applicable.
8.5. The Customer shall be solely responsible for ensuring the accuracy of all original documents seen in support of the application including any expiry dates or other key information within any documentation.
8.6. The Customer shall be responsible for ensuring all Applicant Data is kept up to date in accordance with all Data Protection Legislation.
8.7. It is the responsibility of the Customer to ensure they have a written policy on the secure handling of information provided by the DBS electronically or otherwise and make it available to individuals at the point of requesting them to complete a DBS application form or asking consent to use their information to access any service that the DBS provides.
8.8. It is the responsibility of the Customer to ensure they have a written policy on the recruitment of ex-offenders for employment in relevant positions. This should be available upon request to potential Applicants.
8.9. The Customer shall allow access to their premises, subject to agreement and reasonable notice during office hours, DBS Solutions and any auditors or approved advisers to DBS Solutions. This is in order to conduct audits in accordance with the provisions of Schedule 2.
8.10. DBS Solutions will not be liable for any delays caused by the actions or inactions of the Customer.
9.0 FEES AND PAYMENT
9.1. The Customer shall pay the Application Fee and any other Fees to DBS Solutions for the Services in accordance with this clause 9 and Schedule 1 (Fees).
9.2. The Customer shall, in good time to give effect to these Terms and Conditions, provide DBS Solutions with valid, up-to-date and complete contact and billing details which DBS Solutions requests.
9.3. DBS Solutions shall be entitled to increase the Application Fees giving 30 days’ prior written notice to the Customer.
9.4. DBS Solutions are not responsible or liable for a refund if the DBS/Police have withdrawn an application.
9.5. DBS Solutions are not responsible or liable for a refund if the application is cancelled during processing.
9.6. Application Fee payments shall be calculated based on the volume purchased by the Customer to DBS Solutions in accordance with this agreement and aligned with pricing options available on www.dbscheck.org. DBS Solutions reserves the right to adjust the Application Fee giving 30 days’ prior written notice to the Customer.
9.7. Where the usage is either in excess or short of the applications made via the service in any given period, DBS Solutions reserves the right to adjust the Application Fee giving 30 days’ prior written notice to the Customer. DBS Solutions will not refund and/or back date any of the Application Fee in the event that the package is not used.
9.8. The Customer shall pay the Fees via Debit Card, Credit Card or via invoice. In the case of payment via website the payment must be made at the time of purchase. Should the customer wish to pay via Direct Debit the Customer shall also provide any other relevant valid, up to date and complete contact and billing details as may be necessary for collection of the Fees from the Customer’s nominated bank account. The Customer authorises DBS Solutions to collect such Fees as may be due to it pursuant to this clause (and Schedule 1).
9.9. DBS Solutions may require the Customer to pay the Application Fees by way of Direct Debit where they make levels of use of the Service which, in DBS Solutions reasonable opinion, merit payment by Direct Debit.
9.10. DBS Solutions reserves the right to credit check Direct Debit Customers upon commencement of the Services. The credit score is monitored on a regular basis to ensure the Customer maintains a healthy credit rating. DBS Solutions reserves the right to withdraw the Direct Debit facility at any time if a satisfactory score is not maintained.
9.11. DBS Solutions reserves the right to request a Retainer for Customers who do not pass the independent credit check which, if requested, shall be paid by the Customer prior to the Service commencing.
9.12. DBS Solutions reserves the right to settle any unpaid invoices arising from screening checks from the Retainer held on your behalf.
9.13. Any Retainer received by DBS Solutions will be held in a general client account, the Customer is unlikely to receive as much interest as they might have obtained had they held and invested the money themselves. The Retainer shall be held by DBS Solutions and returned to the Customer within 30 days of termination or expiry of this Agreement less any amounts that DBS Solutions is entitled to retain as payment for fees and/or expenses. DBS Solutions shall be entitled to retain the interest accrued, DBS Solutions will return any held retainer at such time as the Customers Credit score reaches the required level within 30 days.
9.14. DBS Solutions holds Customers’ Direct Debit mandates on file for a minimum of 12 months. DBS Solutions reserves the right to cancel Direct Debit mandates in the event that the Customer has not completed any checks in the last 12 months.
9.15. For Customers choosing to pay by Direct Debit, DBS Solutions shall issue invoices to the Customer in respect of our Fees each week.
9.16. The Customer hereby authorises DBS Solutions to bill such debit, Credit Card, Direct Debit or other payment method as elected:
9.16.1. on or after the purchase date of DBS packages; and/or
9.16.2. subject to clause 13.1, for the Application Fee payable as determined by DBS Solutions;
9.17. The Customer shall pay each invoice submitted by DBS Solutions:
9.17.1. within 7 days of the date of the invoice and
9.17.2. in full and in cleared funds to a bank account nominated by DBS Solutions.
9.17.3. in accordance with any special payment arrangements as agreed with DBS Solutions.
9.17.4. Time for payment of DBS Solutions’ invoices shall be of the essence.
9.18. Payment of any invoice is due in line with clause 9.17.1. If DBS Solutions has not received payment within 7 days, DBS Solutions serve notice on the Customer requesting payment to be made within 2 Working Days and if the payment still remains unpaid after the additional 2 Working Days’ notice for payment, and without prejudice to any other rights and remedies of DBS Solutions:
9.18.1. DBS Solutions reserves the right to recover costs from the Customer should an Applicant default on any payments due;
9.18.2. DBS Solutions reserves the right to engage a debt recovery agent (to recover payment of the debt due) and all associated costs should the Customer fail to pay sums due to DBS Solutions;
9.18.3. DBS Solutions may, without liability to the Customer, disable the Customer’s and all Authorised Users password, account and access to all or part of the Services and DBS Solutions shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
9.18.4. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of Bank of England plc, commencing on the Due Date and continuing until fully paid, whether before or after judgment.
9.18.5. where the customer incorrectly disputes a legitimate card payment to DBS Solutions, and the funds are withdrawn from DBS Solutions a £15.00 administration fee is chargeable to the Customer. This charge is payable, along with the original amount disputed, before account access will be re-enabled.
9.18.6. where a Direct Debit collection is returned unpaid, a £15.00 administration fee is chargeable to the Customer. This charge is payable, along with the original amount owed, before account access will be re-enabled.
9.19. All amounts and fees stated or referred to in this agreement:
9.19.1. shall be payable in pounds sterling;
9.19.2. are non-cancellable and non-refundable; and
9.19.3. are exclusive of value added tax, which shall be added to DBS Solutions’s invoice(s) at the appropriate rate. In line with VAT legislation, all Services purchased on behalf of a Customer, including but not limited to the Disclosure & Barring Service and Disclosure Scotland charges collected on behalf of the organisations, will be treated as disbursements for VAT purposes, and will therefore not be subject to VAT.
9.20. The Customer may be entitled to a referral fee for the referral or introduction of a Customer or potential Customer.
9.21. A discretionary referral fee may be awarded to Associations/Foundations that refer their members. The referral amount would be agreed and payable upon the new customer using the service.
10 PROPRIETARY RIGHTS
10.1. The Customer acknowledges and agrees that DBS Solutions and/or its licensors own all intellectual property rights in the Services. The Results shall be the property of the Applicant. Except as expressly stated herein, this agreement does not grant the Customer any rights to, or in, patents, copyright, database right, trade secrets, trade names, trademarks (whether registered or unregistered), or any other rights or licences in respect of the Services.
10.2. DBS Solutions confirms that it has all the rights in relation to the Services that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.
10.2.1. the Customer shall promptly report to DBS Solutions any infringement of DBS Solutions intellectual property rights that comes to its attention.
10.2.2. save where expressly agreed in writing by the parties, the Customer acknowledges and accepts that nothing in this agreement shall prevent or restrict DBS Solutions from exploiting and or licensing any of the DBS Solutions intellectual property rights to any third party.
10.3. The Customer warrants that it shall (and procures that all Authorised Users and Applicants shall):
10.3.1. not attempt to copy, duplicate, modify, convert, create derivative works from or distribute all or any portion of the Services (except to the extent expressly set out in this agreement or allowed by any Applicable Law which is incapable of exclusion by agreement between the parties);
10.3.2. not attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Services (except allowed by any Applicable Law which is incapable of exclusion by agreement between the parties);
10.3.3. not build a product or service which competes with the Services;
10.3.4. only use the Services for its own organisational purposes; and
10.3.5. prevent any unauthorised access to, or use of, the Services.
11.1. Any confidentiality obligations under this clause 11 are in addition to (and not a substitution for) all other confidentiality obligations agreed between the parties.
11.2. Each party undertakes that it shall not at any time, disclose to any person any Confidential Information, except as permitted by clause 11.3.
11.3. Each party may disclose the other party’s Confidential Information:
11.3.1. to its employees, officers, sub-contractors, representatives or advisers who need to know such information for the purposes of carrying out the party’s obligations under this agreement. Each party shall procure that its employees, officers, representatives or advisers to whom it discloses the other party’s confidential information shall comply with this clause 11 and all other provisions relevant to the confidential information under this agreement; and
11.3.2. as may be required by law, a court of competent jurisdiction or any governmental or regulatory authority.
11.4. No party shall use any other party’s Confidential Information for any purpose other than to perform its obligations under this agreement.
11.5. Notwithstanding clause 11.4, the Customer acknowledges and accepts that DBS Solutions shall be able to make public announcements about the relationship and this contract between the parties without the prior written consent of the Customer (including statements in the media, on its Website or elsewhere). In addition, the Customer agrees that DBS Solutions shall be entitled to display its logo on its Website, brochures and/or other marketing material.
11.6. Each party may be given access to Confidential Information from the other party in order to perform its obligations under this agreement. A party’s Confidential Information shall not be deemed to include information that:
11.6.1. is or becomes publicly known other than through any act or omission of the receiving party;
11.6.2. was in the other party’s lawful possession before the disclosure;
11.6.3. is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.6.4. is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.6.5. is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.7. Each party shall hold the other’s Confidential Information in confidence and, unless required by law, not make the other’s Confidential Information available to any third party, or use the other’s Confidential Information for any purpose other than the implementation of this agreement.
11.8. Each party shall take all reasonable steps to ensure that the other’s Confidential Information to which it has access is not disclosed or distributed by its employees or agents in violation of the terms of this agreement.
11.9. In compliance with this agreement, neither party shall be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party.
11.10. The Customer acknowledges that details of the Services constitute DBS Solutions’ Confidential Information.
11.11. DBS Solutions acknowledges that the Applicant Data is their Confidential Information.
11.12. This clause 11 shall survive termination of this agreement, however arising.
11.13. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
12 IPR INDEMNITY
12.1. The Customer shall indemnify DBS Solutions against all claims, losses, fines or damages suffered by DBS Solutions arising out of any claim made by a third party against DBS Solutions for infringement of that third party’s intellectual property rights arising out of DBS Solutions’ use of the Customer Materials and any IPR claim.
12.2. If a third party makes a claim, or notifies an intention to make a claim, against DBS Solutions which may reasonably be considered likely to give rise to a liability under clauses 12.1, DBS Solutions shall:
12.2.1. immediately notify the Customer of the IPR Claim;
12.2.2. provide the Customer with such reasonable assistance, documents, records and information as requested;
12.2.3. not make any admission of liability, agreement or compromise; and
12.2.4. allow the other party to conduct all negotiations and proceedings.
Nothing in this clause shall restrict or limit DBS Solutions’ general obligation at law to mitigate a loss it may suffer or incur as a result of an event that may give rise to a claim under this clause 12.
13 LIMITATION OF LIABILITY
13.1. The Customer acknowledges and accepts that:
13.1.1. the Services are subject to the limitations and issues inherent in the use of the Public Network (including denial of service attacks and telephony connections) and DBS Solutions is not responsible for and shall not be liable to the Customer for breach of this agreement due to any problems or other damages resulting from such limitations or issues.
13.1.2. DBS Solutions shall have no liability arising from any failure on the part of the Customer to comply with its obligations in relation to Right to Work checks including those obligations set out in the Data Protection Legislation.
13.2. This clause 13 sets out the entire financial liability of DBS Solutions (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
13.2.1. Arising under or in connection with this agreement;
13.2.2. in respect of any use made by the Customer of the Services, the HR Platform and documentation or any part of them; and
13.2.3. in respect of any representation, statement or tortious act or omission (including negligence) arising under or about this agreement.
13.3 Except as expressly and specifically provided in this agreement:
13.3.1. the Customer assumes sole responsibility for results obtained from the use of the Services and the Documentation by the Customer, and for conclusions drawn from such use. DBS Solutions shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to DBS Solutions by the Customer in connection with the Services, or any actions taken by DBS Solutions at the Customer’s direction;
13.3.2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, fully permitted by applicable law, excluded from this agreement; and
13.3.3. the Services and the Documentation are provided to the Customer on an “as is basis”.
13.4. Nothing in this agreement excludes the liability of DBS Solutions: subject to 13.1
13.4.1. for death or personal injury caused by DBS Solutions negligence; or
13.4.2. for fraud or fraudulent misrepresentation.
13.5. Subject to clause 13.3, clause 13.4 and 13.6:
The total aggregate liability of DBS Solutions for all defaults arising out of or in connection with the Agreement, whether in contract, tort, negligence, breach of statutory duty, indemnity or otherwise shall in no event exceed;
For insured claims – £5000,000: and
For uninsured claims, the total amount paid by the Customer to DBS Solutions for the Services in the 12month period prior to the date of the breach.
13.6. DBS Solutions shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement.
13.7. For the term of this agreement, DBS Solutions shall maintain the appropriate Professional Indemnity and Public Liability insurance protection.
14.1. This agreement shall commence on the Commencement Date and shall continue unless: 14.1.1. either party notifies the other party of termination, in writing, in which case this agreement shall terminate with immediate effect; or
14.1.2. otherwise terminated in accordance with the provisions of this agreement.
14.1.3. DBS Solutions terminates for convenience, it may refund fees held in advance giving 30 days’ prior written notice to the Customer.
14.2. Without affecting any other right or remedy available to it, either party may terminate or suspend this agreement with immediate effect by giving written notice to the other party if:
14.2.1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 7 days after being notified in writing to make such payment;
14.2.2. the other party commits a material breach of any other term of this agreement which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
14.2.3. the other party repeatedly breaches any of the terms of this agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this agreement;
14.2.4. the other party suspends, or threatens to suspend, payment of its debts or is Unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
14.2.5. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
14.2.7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party;
14.2.8. the holder of a qualifying floating charge over the assets of that other party has become entitled to appoint or has appointed an administrative receiver;
14.2.9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
14.2.10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days; 14.2.11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 14.1.4 to clause 14.1.10 (inclusive); or
14.2.12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
14.3. On dissatisfaction of the Service the Customer can terminate this agreement for any reason:
14.3.1. all licences granted under this agreement shall immediately terminate;
14.3.2. each party, shall return and make no further use of any equipment, property, and other items (and all copies of them) belonging to the other party, save that each party shall be permitted to keep one copy of any information, documents and/or materials disclosed by the other party (which is to be retained in a confidential and secure file) in circumstances where the receiving party is required to do so according to mandatory law (but such information, documents and/or materials shall be subject to an indefinite confidentiality obligation according to the Terms and Conditions set out in this agreement);
14.3.3. DBS Solutions may destroy or otherwise dispose of any of the Customer and Applicant Data in line with any Applicable Laws; and
14.3.4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.
14.4. Nothing in this agreement shall prevent DBS Solutions from withdrawing all or part of the Services at any time during the term of this agreement upon such written notice to the customer as DBS Solutions.
15.1. Capacity. Each party warrants that it has full capacity and authority, and all necessary licences, permits and consents to enter into and perform the agreement and that those signing the agreement are duly authorised to bind the party for whom they sign.
15.2. Assignment and other dealings. The Customer shall not, except as expressly provided in the agreement, assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights and obligations under the agreement without the prior written consent of DBS Solutions.
15.3. DBS Solutions may assign, sub-contract, transfer, mortgage, charge, declare a trust of or deal in any other manner with any or all of its rights and obligations under the agreement without the prior written consent of the Customer.
15.4. The rights provided under this agreement are granted to the Customer only and shall not be considered granted to any subsidiary or holding company of the Customer.
15.5. Waiver. No failure or delay by a party to exercise any right or remedy provided under the 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.
15.6. Entire agreement. Without prejudice to clause 11.1, the agreement constitutes the entire agreement and understanding of the parties in respect of its subject matter and supersedes all prior agreements, negotiations, discussions and any previous practice or course of dealing between the parties relating to the same. In particular, but without limit to the generality of the preceding sentence, the Customer acknowledges and accepts that it has not entered into the agreement in reliance of any verbal or written communication with any representative of DBS Solutions nor is it relying on any statement or comment made in any DBS Solutions literature (including without limit its Website). Nothing in this clause shall limit or exclude any liability for fraud.
15.7. Variation. No variation or addition to the agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).
15.8. Severance. 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 the agreement shall not be affected. If any invalid, unenforceable or illegal provision of the agreement would be valid, enforceable and legal if some part of it were deleted, the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the parties’ original commercial intention.
15.9. Third party rights. A person who is not a party to the agreement shall not have any rights under the Contracts (Rights of Third Parties) Act 1999 to enforce any term of the agreement, but this does not affect any right or remedy of a third party which exists, or is available, apart from that Act.
15.10. Force majeure. Neither party shall in any circumstances be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure results from a Force Majeure Event.
15.11. Notices. Any notice or other communication required to be given under the agreement, shall be in writing and shall be delivered personally, or sent by prepaid first-class post or recorded delivery, by commercial courier or email to the other party required to receive the notice or email communication or as otherwise specified by the relevant party by notice in writing to each other party.
15.12. Counterparts. This agreement may be executed in any number of counterparts, each of which when executed shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.
15.13. No counterpart shall be effective until each party has executed at least one counterpart.
15.14. Governing law. This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with the laws of England and Wales.
15.15. Jurisdiction. Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims).
This agreement has been entered on the date which the Customer is given access to the Services by DBS Solutions.
SCHEDULE 1 – CHARGES AND FEES
CHARGES 1 Standard Charges
1.1 Registration Fee – free of charge
1.2 Additional locations/subsidiaries – free of charge
These are our standard charges which may be subject to change between the Customer and DBS Solutions.
Our pricing structure and fees are displayed on our Website https://www.dbscheck.org/pricing/
SCHEDULE 2 – AUDIT
- The Customer shall allow DBS Solutions and any auditors of or approved advisers to DBS Solutions to access any of the Customer’s premises, personnel and relevant records as may be reasonably required in order to:
- fulfil any legally enforceable request by any regulatory body; or
- undertake verifications of the accuracy of the Charges or identify suspected fraud; or
- undertake verification that all obligations of the Customer are being performed in accordance with this agreement; or
- undertake verification of any elements of the Services as may be required by DBS Solutions’ licensors.
- DBS Solutions shall ensure that the conduct of each audit does not cause unreasonably disrupt the Customer or delay the provision of the Services to the Customer and that, individual audits are coordinated with each other to minimise any disruption. DBS Solutions may agree to conduct desk top audit to ensure disruption is minimised.
- Subject to Customer’s obligations, including that of confidentiality, the Customer shall provide DBS Solutions (and its auditors and other advisers) with reasonable co-operation, access and assistance in relation to each audit.”
- DBS Solutions shall provide at least 5 Working Days’ notice of its intention to conduct an audit unless such audit is conducted in respect of a suspected fraud, in which event no notice shall be required.
- The parties shall bear their own costs and expenses incurred in respect of compliance with their obligations under this Schedule 2, unless the audit identifies a breach by the Customer, in which case the Customer shall reimburse DBS Solutions for all its reasonable costs incurred in the course of the audit.
- If an audit identifies that: a. the Customer has failed to perform its obligations under this agreement, without prejudice to the other rights and remedies of DBS Solutions, the Customer shall take the necessary steps to comply with its obligations at no additional cost to DBS Solutions:
SCHEDULE 3 – SERVICE LEVELS
- DBS Solutions will be available to receive customer calls between the hours of 8.30am and 4.45pm Monday to Friday other than on public and bank holidays in the UK.
- DBS Solutions will use all reasonable endeavours to assist with any issues relating to the availability of the system and any queries concerning use of the system.
- Response times to any issues will be within 2 working hours.
SCHEDULE 4 – PROCESSING PERSONAL DATA AND DATA SUBJECTS
Processing by DBS Solutions
- Processed lawfully, fairly and in a transparent way Data is processed for the specific purposes for the provision of online vetting and screening services to Customers and Applicants. The Customer must inform DBS Solutions of the types of checks to be carried out on the Applicant Data by utilising the product selection. Both Customers and Applicants sign a consent prior to using the Service so they are aware of the data processing requirements. The purposes for the which the data will be processed are clear and transparent to the Applicants.
- Collected for specific, explicit and legitimate purposes, and not further processed in a manner incompatible with those purposes
The vetting and screening checks are used as a verification service for employers to ensure Applicants have the appropriate qualifications and security freedom to work within given sectors.
- Adequate, relevant and limited to what is necessary in relation to the purpose for which they are processed The Applicant Data captured and collected by the system is mandated by legislative and contractual requirements the Police Act, Safeguarding Vulnerable Groups Act, Rehabilitation of Offender Act, UK Visas and Immigration, Disclosure & Barring Service, Disclosure Scotland and the Protection of Freedoms Act. We do not collect any other information.
- Accurate and, where necessary, kept up to date The Applicant Data collected must meet legislative guidelines and therefore MUST be current information dated within 3 months of completing a vetting and screen check. In the event that such applications are not completed within the aforesaid three-month timeframe, DBS Solutions may delete such applications from its systems in accordance with its internal data retention policy and GDPR. It is a requirement that employers conduct visual checks and “face to face” checks on the documentation submitted, prior to processing the vetting and screening checks.
- Retained only for as long as necessary Applicant Data is only kept for the vetting and screening purposes only. Following the checks taking place, the Applicant Data save as set out below is deleted after 6 months. However, due to the nature of processing personal data relating to criminal convictions and offences, it is a legal and/or regulatory requirement that this part of the Applicant Data is kept for a period of 2 years following the leave date of said Applicant. We will retain audit and system data for a period of 24 months after employment has ceased then the data is deleted. (NOTE – this data is retained pending any external requests by the DBS, external audit agencies or police).
- Processed securely, in an appropriate manner to maintain security
- Applicant Data is held securely and appropriately on site with backup servers and icloud storage.
- No Applicant Data is transferred outside the EEA without adequate protection. The vetting and screening service is predominately in the UK.