Behavioural Safety Tracking Software
Conditions of Supply
1. Interpretation
1.1
In these conditions
'behavioural-safety.com / espectat.com'
means Prof. Mark Dominic Cooper a UK Citizen, trading as
behavioural-safety.com / espectat.com.
“ADDITIONAL SERVICES” means
those additional services, which behavioural-safety.com / espectat.com may from time to time
provide the User
'COMMENCEMENT DATE' means
the date(s) upon which Behavioural –Safety.com shall commence providing the
software Services
‘CHARGES’ means the charges
for the provision of the service as set out in the specification as the same
may be varied in accordance with clause 3.2 below.
'CONTRACT' means these terms
and conditions
'DESIGNATED COMPUTER SYSTEM'
means the User’s computer system identified in the specification
'DOCUMENT' includes, in
addition to a document in writing, any map, plan, graph, drawing or photograph,
any film, negative, tape or other device embodying visual images and any disc,
tape or other device including electronic mail embodying any other data
'FACILITY' means the
storage, data processing and analytical facilities provided by
behavioural-safety.com / espectat.com to the User to enable the User to use the licensed
programme
'HELPLINE SERVICES' means
the provision of an e-mail based helpline service to assist the User to access the
Facility and use the Licensed Programme which subject to the provisions of
clause 2.9 is available to the User between the hours of 10.00 am and 4.00 pm
GMT Monday to Friday excluding Bank Holidays.
'INPUT MATERIAL' means any
Documents or other materials, and any data or other information provided by the
User in whatsoever form throughout the continuance of the Contract.
'LICENSED PROGRAMME' means
the "Online Behavioural Safety Tracking Software” supplied under a non-exclusive,
non-assignable and non-transferable licence by behavioural-safety.com / espectat.com together
with all modifications, refinements and improvements which may from time to
time be incorporated into the Licensed Programme.
'MAINTENANCE SERVICES' means
the periodic maintenance of the Facility so as to enable the User to use the
Licensed Programme.
'MULTIPLE SITES'
means more than one geographical User site within the same company, group or
corporate entity using the Licensed Programme.
'OUTPUT MATERIAL' means any
Documents, the Licensed Programme together with any instruction manuals or
other materials, and any data or other information provided or supplied by
behavioural-safety.com / espectat.com in whatsoever form throughout the continuance of
Contract.
'RECURRING LICENSE FEE'
means the annual license fee (excluding Value Added
Tax or other Sales Tax) payable on each anniversary of this Agreement
'SERVICES' means access to
the Facility, a non-exclusive licence to use the Licensed Programme, the
Maintenance Services, the Helpline Services and the Additional Services.
'SPECIFICATION' means the
specification of the Services and Charges agreed between the User and
behavioural-safety.com / espectat.com
'USER' means the person set
out in the Specification to whom the Services are to be provided in accordance
with this Contract.
1.2
The headings in these Conditions are for convenience
only and shall not affect their interpretation.
2.
Supply
of the Services
2.1
behavioural-safety.com / espectat.com shall from the Commencement
Date provide the Services to the User subject to this Contract.
2.2
The User shall at its own expense supply
behavioural-safety.com / espectat.com with all necessary data or other information relating to
the Services, within such time and in such manner as behavioural-safety.com / espectat.com may
require to enable behavioural-safety.com / espectat.com to provide the Services in accordance
with the Contract. The User shall
ensure the accuracy of all Input Material.
2.3
Upon the Commencement Date behavioural-safety.com / espectat.com
shall provide the User with a password together with Output Material and such
instructions as shall be necessary so as to enable the User to access the
Facility and use the Licensed Programme.
2..4 The User shall at its own expense retain
duplicate copies of all Input Material and insure against its accidental loss
or damage. behavioural-safety.com / espectat.com shall
have no liability for any such loss or damage, however caused.
2.5 The User shall comply with any reasonable
directions and instructions which may from time to time be given by
behavioural-safety.com / espectat.com concerning the Services including, but not limited to,
on 24 hours notice, taking the Facility "off line" such that access
to it is denied for not more than 24 hours in any 7 day period.
2.6
behavioural-safety.com / espectat.com may at any time without
notifying the User make any changes to the Services which are necessary to
comply with any applicable safety or other statutory requirements which do not
materially affect the nature or quality of the services.
2.7
Time shall not be of the essence for the provision of
the Services and behavioural-safety.com / espectat.com shall not be liable for any delay in
providing the Services.
2.8
The User shall submit a written request to
behavioural-safety.com / espectat.com for any Additional Services which may from time to time
be required; such request to include the services required, when, the location,
for how long and for whom. Upon receipt
of such a request behavioural-safety.com / espectat.com shall notify the User of the terms
upon which it would be able to provide the Additional Services which will then
be capable of acceptance or otherwise by the User.
2.9
The Helpline Service shall not include the diagnosis
and rectification of any fault arising from:-
2.9.1 the improper use, operation or neglect of either the
Licensed Programme,
Output Materials or the Designated Computer System;
2.9.2
Attempts to modify the Licensed Programme or their
merger (in whole or part) with any other software, which is expressly
prohibited;
2.9.3
the modification of the Licensed Programme or their
merger (in whole or part) with any other software, which is expressly
prohibited;
2.9.4
the use of the Licensed Programme on any system other
than the Designated Computer System;
2.9.5
the failure by the User to implement recommendations
in respect of or solutions to faults previously advised by
behavioural-safety.com / espectat.com
2.9.6
any repair, alteration, adjustment or modification of
the Licensed Programme by any person other than behavioural-safety.com / espectat.com without
the prior written consent of behavioural-safety.com / espectat.com;
2.9.7
any breach by the User of any of its obligations under
any maintenance agreement in respect of the Designated Computer System;
2.9.8
the failure by the User to install and use in
accordance with the instructions of behavioural-safety.com / espectat.com on the Designated
Computer System in substitution for the previous release any modification,
refinement and improvement to the Licensed Programme which may from time to
time be released by behavioural-safety.com / espectat.com within 7 days of receipt of any
instructions on the use and installation of any such release;
2.9.9
the use of the Licensed Programme for a purpose for
which it was not intended; or
2.9.10 the
installation, usage and operation of the Licensed Programme and the Facility by
an individual or individuals other than a reasonably skilled and competent data
processing operator.
3.
Charges
3.1
the Commencement Date for the provision of the service
is the date when the User’s Initial License Fee(s) have cleared the Banking
System. The Recurring License Fee falls due 30 days prior to each anniversary
of the Commencement Date
3.2
The User shall reimburse behavioural-safety.com / espectat.com any
additional costs and expenses it has incurred or suffered as a result of any
defect in the User's instructions or lack of instructions, the inaccuracy of
any Input Material or any other cause attributable to the User.
3.3
behavioural-safety.com / espectat.com shall be entitled to vary:-
3.3.1
its Charges for the Additional Services from time to
time by giving not less than one months' written notice to the User; and
3.3.2
the Recurring License Fee upon each anniversary
of the Commencement Date by the higher of the percentage increase in the Retail
Prices Index for the preceding twelve months and the percentage increase in the
cost to behavioural-safety.com / espectat.com in providing the Services for the preceding
twelve months.
3.4
The Charges set out in the Specification are exclusive
of any Value Added Tax or other Sales Taxes, for which the User shall be
additionally liable.
3.5
Those Charges payable annually shall be payable in
advance upon the Commencement Date and each anniversary thereof thereafter;
3.6
Save as otherwise agreed behavioural-safety.com / espectat.com shall
be entitled to raise an invoice in respect of any Additional Services provided
upon the completion of any such services, such invoice to be discharged in full
within 30 days.
3.7
behavioural-safety.com / espectat.com shall be entitled to charge
interest on any payment due under this Contract and not paid on its due date at
the rate of 20% above the base rate from time to time of Barclays Bank plc from
the due date until the outstanding amount is paid in full.
3.8 Where Multiple Site licenses are in operation to use the Licensed Programme the User shall make all requests for support through one nominated site and behavioural-safety.com / espectat.com’s support services shall be provided to that nominated site only on behalf of the other site(s). The designation of the nominated site may be changed from time to time by agreement in writing with behavioural-safety.com / espectat.com.
3.9
Training or assistance required to implement the system, install a new
release or necessitated by user error or negligence do not form part of
behavioural-safety.com / espectat.com’s support of the software and, if provided, will be
subject to behavioural-safety.com / espectat.com’s then standard service terms and conditions
and charged separately at its then current daily service rates.
4.
Rights
in Input Material and Output Material
4.1
Except for the rights granted to the User hereunder,
all rights, title and interests, including without limitation or the copyright,
patent, trademark, trade secret and any other intellectual property rights in
or attributable to the Licensed Programme are retained by Prof. Mark Dominic
Cooper, a UK citizen.
4.2
The property and any copyright or other intellectual
property rights in:
4.2.1
any Input Material shall belong to the User
4.2.2
any Output Material shall, save in relation to the
Licensed Programme or otherwise agreed in writing between the User and
behavioural-safety.com / espectat.com, belong to behavioural-safety.com / espectat.com, subject only to the
right of the User to use the Output Material throughout the continuance of the
Contract.
4.3
Any Input Material or other information provided by
the User which is so designated by the User shall be kept confidential by
behavioural-safety.com / espectat.com, and all Output Material or other information (including
the terms of the Contract) provided by behavioural-safety.com / espectat.com which is so
designated by behavioural-safety.com / espectat.com shall be kept confidential buy the User;
but the foregoing shall not apply to any Documents or other materials, data or
other information which are public knowledge at the time when they are so
provided by either party, and shall cease to apply if at any future time they
become public knowledge through no fault of the other party.
4.4
Throughout the Term of this Agreement and for a period
of two years thereafter, neither party shall use, disclose, make or have made
any copies of the others' information which is designated by the other as being
confidential in whole or in part, except as provided for within these terms,
without the prior written consent of the other party. The parties shall only disclose or allow access to information
designated by the other as being confidential to employees, consultants or
contractors who:-
4.4.1
have the need to obtain access thereto in order to
give effect to the rights granted to the User under this Agreement;
4.4.2
are legally bound to maintain the propriety and
confidential nature of such materials under a written Agreement.
4.5
The User warrants that any Input Material and its use
by behavioural-safety.com / espectat.com for the purpose of providing the Services will not
infringe the copyright or other rights of any third party, and the User shall
indemnify behavioural-safety.com / espectat.com against any loss, damages, costs, expenses or
other claims arising from any such infringement.
4.6
Subject to paragraph 4.5 behavioural-safety.com / espectat.com
warrants that any Output Material and its use by the User for the purposes of
utilising the Services will not infringe the copyright or other rights of any
third party, and behavioural-safety.com / espectat.com shall indemnify the User against any
loss, damages, costs, expenses or other claims arising from any such
infringement.
5.
User's
Obligations
5.1
The User shall use the Licensed Programme supplied by
behavioural-safety.com / espectat.com on the Designated Computer System only, in executable
code form only for processing and analysing its own data for its own internal
business purposes only in the ordinary course of business.
5.2
The User shall not:-
5.2.1
make any copy for whatsoever reason of the Licensed
Programme supplied;
5.2.2
seek to reverse, decompile or otherwise re-engineer
the Licensed Programme;
5.2.3
seek to obtain the source code of the Licensed
Programme;
5.2.4
use the intellectual property rights vested in the
Licensed Programme except for the rights granted to User hereunder, to develop,
or seek to develop, their own version of the Licensed Programme, or facilitate
in any way the same by any third party. In the event that this occurs:
5.2.4.1 the User agrees that all rights, title and interests, including without limitation or the copyright, patent, trademark, trade secret and any other intellectual property rights in or attributable to the Licensed Programme are retained by Prof. Mark Dominic Cooper, a UK citizen; and
5.2.4.2 the User agrees that financial compensation in the sum of £250,000 Sterling will be immediately payable to behavioural-safety.com / espectat.com upon demand; and
5.2.4.3 the User agrees to destroy all copies of their developed source code(s), of the developed version, including but not unlimited to those held by the user and any other third party. For the avoidance of doubt, the User agrees that in the event that the User fails to destroy all such copies held by themselves and/or other third parties, the User will immediately be liable to pay behavioural-safety.com / espectat.com financial compensation in the sum of £250,000 Sterling each and every copy still in circulation, whether in use or not by the User or other third party, such compensation to be payable upon demand.
5.2.5
remove any copyright, trademark or other proprietary
notices of Mark Dominic Cooper or suppliers affixed to or displayed on the
Licensed Programme;
5.2.6
transfer, assign or purport to transfer or assign the
Licensed Programme to any third party;
5.2.7
seek to use the Licensed Programme on any computer
system other than the Designated Computer System;
5.2.8
have any right to use, transfer or assign Mark Dominic
Cooper's trade and service marks in or attributable to the Licensed Programme
or otherwise.
6.
Warranties
and Liability
6.1
behavioural-safety.com / espectat.com warrants to the User that:-
6.1.1 subject to this Contract the Facility shall
enable the User to use the Licensed Programme throughout the duration of this
Contract; and
6.1.2
any Additional Services which may be provided by
behavioural-safety.com / espectat.com shall be provided using reasonable care and skill.
AND
THE USERS ATTENTION IS IN PARTICULAR DRAWN TO THE PROVISIONS OF THIS CLAUSE 6.
6.2
behavioural-safety.com / espectat.com shall have no liability to the
User for any loss, damage, costs, expenses or other claims for compensation
arising from any Input Material or instructions supplied by the User which are
incomplete, incorrect, inaccurate, illegible, out of sequence, or in the wrong
form, or arising from their late arrival or non-arrival, or any failure to
follow behavioural-safety.com / espectat.com's instructions and directions or any other fault
of the User.
6.3
Except in respect of death or personal injury cause by
behavioural-safety.com / espectat.com's negligence, behavioural-safety.com / espectat.com shall not be liable
to the User by reason of any representation (unless fraudulent), or any implied
warranty, condition or other term, or any duty at common law, or under the
express terms of the Contract, for any loss of profit or any indirect, special
or consequential loss, damage, costs, expenses or other claims (whether caused
by the negligence of behavioural-safety.com / espectat.com, its servants or agents or
otherwise) which arise out of or in connection with the provision of the
Services or their use by the User, and the entire liability of
behavioural-safety.com / espectat.com under or in connection with the Contract shall not
exceed the Charges paid by the User in the twelve month period immediately
preceding the event giving rise to such liaibility.
6.4
behavioural-safety.com / espectat.com shall not be liable to the User
or be deemed to be in breach of the Contract by reason of any delay in
performing, or any failure to perform, any of behavioural-safety.com / espectat.com's
obligations in relation to the Services, if the delay or failure was due to any
cause beyond behavioural-safety.com / espectat.com's reasonable control including for the
avoidance of doubt the termination or interruption of behavioural-safety.com / espectat.com's
rights to use or sub-license the use of the Licensed Software.
7.
Commencement,
Duration and Termination
7.1 This Agreement shall commence on the
Commencement Date and subject to the provisions of clause 7.2 shall continue
for a fixed term of One year and thereafter shall continue until terminated by
either party giving the other not less than [three] months written notice
expiring at any time after the initial fixed term.
7.2
Either party may (without limiting any other remedy)
at any time terminate the Contract by giving written notice to the other if the
other commits any breach of this Contract and (if capable of remedy) fails to
remedy the breach within 30 days after being required by written notice to do
so, or if the other goes into liquidation, or (in the case of an individual or
firm) becomes bankrupt, makes a voluntary arrangement with his or its creditors
or has a receiver or administrator appointed.
7.3
Upon termination, the User shall forthwith cease to
have any right to access the Facility or to use the Licensed Programme and
shall forthwith return to behavioural-safety.com / espectat.com all Output Material in its
possession and control and behavioural-safety.com / espectat.com shall return to the User all
Input Material in its possession and control.
8.
Force
Majeure
8.1
Neither party hereto shall be liable for any breach of
its obligations hereunder resulting from causes beyond its reasonable control,
including but not limited to fires, strikes (of its own or other employees)
insurrection of riots, embargoes, container shortages, wrecks or delays in
transportation, inability to obtain the supplies and raw material requirements
or regulations of any civil or military authority (an "Event of Force
Majeure");
8.2
Each of the parties hereto agrees to give notice
forthwith to the other upon becoming aware of an Event of Force Majeure, such
notice to contain details of the circumstances giving rise to the Event of
Force Majeure;
8.3
If a default due to an Event of Force Majeure shall
continue for more than 3 weeks then the party not in default shall be entitled
to terminate this Agreement;
8.4
Neither party shall have any liability to the other in
respect of termination of this Agreement as a result of an Event of Force
Majeure.
9.
General
9.1
This Contract (together with the Specification)
constitutes the entire agreement between the parties, supersedes any previous
agreement or understanding and may not be varied except in writing between the
parties. All other terms and
conditions, express or implied by statute or otherwise, are excluded to the
fullest extent permitted by law.
9.2
behavioural-safety.com / espectat.com shall be entitled to
subcontract its obligations under the terms of the Contract. The User shall not be entitled to assign any
of its rights and/or obligations under the terms of the Contract without the
prior written consent of behavioural-safety.com / espectat.com.
9.3
Any notice required or permitted to be given by either
party to the other under these Conditions shall be in writing addressed to the
other party at its registered office.
9.4
No failure or delay by either party in exercising any
of its rights under the Contract shall be deemed to be a waiver of that right,
and no waiver by either party of any breach of the Contract by the other shall
be considered as a waiver of any subsequent breach of the same or any other
provision.
9.5
If any provision of this Contract is held by any
competent authority to be invalid or unenforceable in whole or in part, the
validity of the other provisions of this Contract and the remainder of the
provision in question shall not be affected.
9.6
Any dispute arising under or in connection with this
Contract or the provision of the Services shall be referred to arbitration by a
single arbitrator appointed by agreement or (in default) nominated on the
application of either party by the President for the time being of The Law
Society of England & Wales in accordance with the Rules of The Chartered
Institute of Arbitrators.
9.7
English law shall apply to the Contract, and the
parties agree to submit to the non-exclusive jurisdiction of the English
courts.