Agreement Terms & Conditions
APPLICATION OF TERMS
The Agreement which is made between Be-Safe Technologies Limited ("Be-Safe") whose details are stated in the Order Form and the Customer whose details are also stated in the Order Form and the Terms stated in this Agreement shall only be these Terms set out below and all terms and conditions offered by the Customer are hereby excluded from the Agreement. The Agreement shall comprise of these Terms, the Order Form(s) and any documents of Be-Safe referred to in these Terms and in an Order Form itself. These Terms shall become binding upon the Customer when the Customer signs these Terms and/or an Order Form whether manually or by any digital signing platform or otherwise via the Be-Safe website where the Customer has signed-up for the Services on the Be-Safe website.
Each Order Form shall describe the actual Services and/or Technical Services being provided by Be-Safe and once signed and/or accepted by Be-Safe, following the Customer agreeing to that Order Form, shall be a binding agreement upon the Customer to receive the Services and/or Technical Services described in that Order Form subject to these Terms. An Order Form shall be accepted on the earlier of Be-Safe: (i) expressly giving notice of acceptance; and/or (ii) Be-Safe digitally signing or manually signing the Agreement or by Be-Safe (iii) taking steps to start fulfilling the Order Form in whole or in part.
In the event of any inconsistency between these Terms and anything appearing on the face of the Order Form, the Order Form shall prevail over these Terms.
Each Order Form shall represent a separate Agreement. These Terms shall continue to apply for all Order Forms made under these Terms and each Order Form shall have a minimum duration of 36 months from the Go-Live date unless otherwise stated on that Order Form ("Minimum Period"), such Go-Live date and such Minimum Period commencing as from the start of the Services provided under that Order Form ("Go-Live"). After the foregoing Minimum Period, the applicable Order Form shall remain in full force and effect unless one party gives to the other 90 days prior notice to terminate that Order Form with effect from 12 months from the applicable 12 monthly anniversary following the end of that Minimum Period. None of the foregoing prevents any or all Order Forms being terminated under Clause 6 of these Terms. If the Customer terminates an Order Form for a breach by Be-Safe under Clause 6, then unless that breach applies to all Order Forms under these Terms, only that Order Form may be terminated.
Be-Safe shall provide the Services and the Technical Services upon the Terms of the Agreement applicable for each Order Form.
Be-Safe shall also:
provide the Services to the Customer as from its own Platform as a competent and professional provider of technology services in accordance with the Services description in the Order Form;
use reasonable endeavours to provide the Services to the standards set out in the Service Level Guide but the Customer and Be-Safe both acknowledge that any time for delivery shall be an estimate only and time shall not be of the essence under this Agreement;
(c) in its provision of the Services and the Technical Services, provide them in accordance with the legal and regulatory obligations applicable to Be-Safe. It is expressly acknowledged and agreed by the Customer that the Services and how they are used by the Customer are for the Customer to ensure that they comply with all of the Customer's legal and regulatory obligations including as to compliance with applicable health and safety laws, which remain the entire responsibility of the Customer. In consideration of the Customer paying the Charges under an Order Form, Be-Safe hereby grants pursuant to that Order Form a licence to access the Platform to use the Services under the Order Form and for the duration of that Order Form and for the number of Licensed Users stated in the Order Form;
(d) in the provision of any Technical Services, provide those in a competent and professional manner and in accordance with the Technical Order Form;
CUSTOMER LICENCE AND OBLIGATIONS
The Customer shall (and shall ensure that the Licensed Users shall also):
only use the Services for its own internal business use and for the benefit of its health and safety compliance or management and to that extent any Licensed User who is a contractor of the Customer shall only be authorised to use the Services for the business of the Customer and not a third party and accordingly the Customer shall not resell them, provide any bureau service or otherwise seek to reverse engineer the Services (or any intellectual property underlying them) for any use outside of this Agreement or otherwise and comply with the licence grant set out at Clause 3.1(e);
ensure and validate that the Services meets its own needs and shall be responsible for assessing whether the Services are suitable for the Customer's needs and health and safety compliance;
ensure that it can access the Platform and acknowledges that Be-Safe is not responsible for the availability of any telecommunications services or lines or mobile and celluar connectivity or any other matter not provided by Be-Safe and which it does not provide to the Customer to facilitate that access and the Customer shall ensure that it maintains the minimum technical configurations to ensure it can access and maintain access to the Services for the Term;
makes payment of the Charges as provided for in the Order Form;
only allow the number of Licensed Users to access the Platform and use the Services as stated in the Order Form and remain responsible for the use made by the Licensed Users hereunder and for such purposes ensure that a password used by an Licensed User is personal to that Licensed User and not shared with any other person for use by that person as though they are the Authorised User;
report any issue with the Services promptly to Be-Safe to enable Be-Safe to assess that issue and remediate it to the extent it is the responsibility of Be-Safe;
Only use the Services in the Territory stated in the Order Form or for the purposes stated in the Order Form and for the duration specified in the Order Form or if no period is specified until this Agreement ends and in accordance with any acceptable use policy published by Be-Safe on its website and use them in compliance with all applicable laws and regulations and shall use reasonable endeavours to bring to the attention of Be-Safe any requirements under applicable law, regulations and any listing rules or industry codes or otherwise which Be-Safe need to comply with in the provision of the Services so that the Services themselves comply with such requirements;
Whilst the Services may be described on the Be-Safe website, the Customer acknowledges that the functionality, features and limitations of the Services they have subscribed for shall be limited to that as described in each Order Form depending on the Pricing Package and to enjoy further features or functionality, the Customer would have to agree that with Be-Safe in consideration for an upwards adjustment in the Charges and a change to the Pricing Package described in the Order Form and any applicable change management process set out in the Order Form.
CHARGES AND PAYMENT
In consideration of the provision of the Services and (as applicable) the Technical Services, the Customer shall pay the Charges for the Services and/or the Technical Services as set out in the Order Form and such Charges may be increased by Be-Safe effective 1st January each year commencing in the year following the first 12 months of the first Order Form (but applicable thereafter for all subsequent Order Form(s) under this Agreement) by an amount not to exceed 5% above the average of the retail price index published by the office for national statistics in the UK in the prior 12 month period. None of the foregoing shall prevent the Customer being moved to a different Pricing Package pursuant to clause 3.1(h) and Be-Safe reserves the right to charge an overage charge if the parametres of the Pricing Package are exceeded by the Customer. The Customer shall pay all invoices for Services and the Technical Services in full without offset, withhold or deduction. Some of those charges shall be stated as payable in advance for the Services and/or Technical Services and some in arrears calculated by reference to usage, all as shown in the Order Form. All Charges are due and payable by the Customer to Be-Safe within 30 days of the date of invoice unless otherwise stated in an Order Form. The Charges are stated net of Value Added Tax (or other sales tax or impost, duty or tariff) which if lawfully due, shall be charged in addition at the applicable rate ruling on the date of Be-Safe's invoice to Customer. In the event that any Services or Technical Services are not paid for by the due date, in addition to any other rights that Be-Safe has, it shall have the right to suspend without notice all Services and Technical Services under all Order Form(s) with the Customer. No dispute on an invoice can be raised (and for such purposes the Customer waives any right to raise one) 90 days following the date of the applicable invoice.
CANCELLATION AND AUDIT
Once an Order Form has been accepted by Be-Safe or otherwise Be-Safe has commenced any work on that Order Form, it cannot be cancelled and the Services shall be paid for in full including any minimum spend for the minimum term or Minimum Period of the Order Form.
Be-Safe reserves the right to audit the use by the Customer of the Services by reasonable prior written notice to the Customer, including as to the use of them by the Licensed Users. The Customer shall ensure that Licensed Users do not share their credentials or access to the Platform with others. In such circumstances, the Customer shall provide all reasonable assistance and cooperation with Be-Safe in that audit.
Either party may terminate the Order Form and the Agreement relating to that Order Form or in the event that the Customer fails to pay Be-Safe even on one Order Form, Be-Safe has the right to terminate all Order Form(s) and all the Agreements for all Order Forms or in the event that a party is in breach of the terms of all Order Forms, immediately on written notice to the other if the other party:
commits a material breach of its obligations hereunder and, if the failure is remediable, fails to remedy it within 14 days of a notice requiring it to do so; and
becomes insolvent or bankrupt, or has a receiver, administrative receiver or administrator appointed in respect of the whole or any part of its undertaking or assets, or passes a resolution for its liquidation or winding up (other than for the purposes of a bona fide solvent amalgamation or reconstruction) or a court of competent jurisdiction makes an order to that effect, or if the other party enters into any voluntary arrangement with is creditors or becomes subject to an administration order, or if any comparable event occurs in any jurisdiction.
To the extent that the Customer has committed to a minimum term in an Order Form (or otherwise in these Terms for each Order Form) and thereby a minimum monthly spending commitment with Be-Safe (whether by way of the minimum number of Licensed Users or otherwise as stated in the Order Form), to the extent that the Customer wishes to terminate (or Be-Safe does terminate under Clause 6.1(a) or 6.1(b)) any Order Form or all Order Forms, then Be-Safe shall only consent to that early termination where requested by the Customer, or should Be-Safe terminate under Clauses 6.1(a) or 6.1(b), upon the payment by the Customer of the remainder of all that minimum monthly spend commitment in full for what would have been the Minimum Period but for that earlier termination) as at the date of that earlier termination.
All obligations and liabilities intended to survive the termination of the Agreement will remain in full force and effect after termination.
LIABILITY and INDEMNITY
Neither party shall limit or exclude its liability for death or personal injury, fraud or any other liability which it would be unlawful to exclude or limit. Subject to the foregoing the total liability that each party shall have to the other under an Order Form for all claims in each consecutive 12 month period commencing from the date of that Order Form shall not exceed the Charges paid or payable under the Order Form in that same consecutive 12 month period.
None of clause 7.1 shall limit the liability of the Customer to pay the Charges nor limit the liability of the Customer for any breach of Clause 3. Subject to the foregoing, neither party shall be liable to the other whether in contract, tort or otherwise (including negligence) for any indirect or consequential loss or damage whatsoever including any loss of revenues, business, Agreements or anticipated savings (being savings that a party anticipated making by entering into this Agreement);
Subject to clause 7.2, in the event that a third party claims that the Service provided by Be-Safe infringes the intellectual property rights of that third party, Be-Safe shall indemnify the Customer (and its Licensed Users) for and to the extent only, of those third party claims and for such indemnity to be valid, the Customer shall allow Be-Safe sole conduct to resolve those third party claims which shall be binding upon the Customer PROVIDED THAT such settlement shall not impose on the Customer a financial liability to that third party which is not covered by this indemnity. In the event that Be-Safe is not able to continue to provide the Services (or any part of them) due to that third party claim, Be-Safe shall seek to amend the Services to remove the part(s) which are subject to that third party claim (but in doing so without materially adversely affecting the outcome of the Services) or seek to agree a commercial resolution with the third party upon terms acceptable to Scirbestar, but if none of the foregoing are feasible to Be-Safe, Be-Safe may terminate the Services and shall refund to the Customer any Charges paid in advance and for a period from, the date of termination.
INTELLECTUAL PROPERTY RIGHTS AND STATISTICS
All Intellectual Property Rights in the Services and Platform are owned or licensed to Be-Safe and the Customer acknowledges that any development or enhancement of the Services and/or the Platform shall remain vested in Be-Safe including any materials created by Be-Safe from the Platform and in the provision of the Services and Technical Services and no Intellectual Property Rights relating thereto shall be assigned to the Customer. The provision of the Services and the Platform may create anonymised performance data which is also the Intellectual Property Rights of Be-Safe (excluding any Customer Personal Data which remains owned by the Customer).
The parties agree to treat confidential information of the other in strict confidence and other than allowing the recipient party's directors, employees, contractors and professional advisors access to such confidential information, the recipient party shall not disclose it to any third party without the express prior written consent of the disclosing party. Confidential information shall not include any information which is in the public domain other than as a breach by the recipient party of its confidentiality obligations hereunder. In the event that the recipient party is ordered by a court of competent jurisdiction to disclose any confidential information of the disclosing party, it shall to the extent legally permissible, notify the disclosing party of that fact and thereby allow the disclosing party to seek such protective measures as it can in order to limit the extent of any such disclosure. The foregoing confidentiality obligations shall survive the termination or expiry of all the Order Forms under the Agreement for a period of three years.
DATA PROTECTION and SECURITY
10.2 Be-Safe shall maintain the security of its Platform to the standards published by it from time to time on its website but in doing so, in accordance with all applicable law.
The Agreement constitutes the entire agreement between the parties and cancels and supersedes any and all previous agreements (whether oral or written, express or implied) between the parties relating to the subject matter of the Agreement. Except for the express written terms of the Agreement, the parties acknowledge and agree that in entering into the Agreement they have not relied on or been induced by any warranty, statement or representation of the other or any other person relating to the Agreement. Nothing in the Agreement shall affect any liability of a party for fraud or fraudulent misrepresentation.
No term of the Agreement is intended for the benefit of any third party (except Be-Safe's Affiliates) and none of these Terms shall be enforceable by a third party (except Be-Safe's Affiliates).
No failure or delay by a party in exercising or enforcing any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise of such right, power or privilege.
The Agreement shall be governed by and construed in accordance with the laws of the Governing Jurisdiction. The Parties submit to the exclusive jurisdiction of the Governing Jurisdiction over any claim or matter arising under or in connection with this Agreement.
Be-Safe shall not be responsible for any event outside of its direct control including any act of god, strike, lock-out, interruption to supplies, terrorism, failure of telecommunications services or facilities, weather, flood or other natural disaster.
Any notice to be sent by one party to the other shall be sent to their last known address and shall be deemed delivered within 3 days of posting if sent by first class post, or if sent by email, the day following the email being sent if the email is not returned stated as undelivered.
Be-Safe may assign this Agreement and any and all Order Forms to a third party (including to an Be-Safe Affiliate) upon written notice to the Customer.
DEFINITIONS AND INTERPRETATION
In the Agreement, unless the context otherwise requires:
"Affiliates" means a party under the control of, subsidiary to, or under the common control of another company in the same group of companies as provided for under the Companies Act 2006.
"Charges" means such charges as are payable by Customer to Be-Safe in respect of the provision of the Services and/or Technical Services as set out in the Order Form. If no price is set out in the Order Form, the price previously paid by Customer for equivalent supplies.
"Agreement" means the Agreement between the Customer and Be-Safe.
"Customer" means the customer named in the Order Form.
"Governing Jurisdiction" means English Law and the courts in England, unless otherwise stated in an Order Form.
"Intellectual Property Rights" means all patents, rights to inventions, utility models, copyright and related rights, trade-marks, service marks, trade, business and domain names, rights in trade dress or get-up, rights in goodwill or to sue for passing off, unfair competition rights, rights in designs, rights in computer software, source code, database rights, topography rights, moral rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications for and renewals or extensions of such rights, and all similar or equivalent rights or forms of protection in any part of the world
"Order Form" means the written order placed with Be-Safe by the Customer for the supply of Services or Technical Order Form.
"Licensed Users" means the number of licensed users which are authorised to access the Services under the Order Form each licence user being an individual.
"Platform" means Be-Safe's platform which the Customer (and its Licensed Users) shall access the Services.
"Pricing Package" means the Charges under an Order Form for a particular package of Services having regard to the number of Licensed Users with a packaged pricing associated with the limits on use described in that Pricing Package.
"Services" means Be-Safe's services supplied to the Customer under and as described in an Order Form further details of which are published from time to time on the Be-Safe website.
"Service Level Guide" means the availability and support that Be-Safe will provide in the provision of the Services as published from time to time on the Be-Safe website;
"Technical Order Form" means an order between Be-Safe and the Customer for certain technical and/or professional services in order to enable the Customer to integrate with the Platform and/or any other assistance which Be-Safe provides to the Customer.
"Terms" means these terms and conditions of purchase.
"Be-Safe" means the Be-Safe legal entity named on an Order Form(s) or any Be-Safe Affiliate if that Affiliate is stated as a provider of the Services (or Technical Services) in an Order Form.
In these Terms, references to:
the "parties" or "party" are references to Be-Safe and the Customer or one of them as applicable;
a third party are references to a person who is not a party to the Agreement;
the singular shall include the plural and vice versa;
a statute, statutory instrument, regulation, order or licence are references to that statute, statutory instrument, regulation, order or licence as substituted, varied or re-enacted from time to time.
The headings in these Terms are for convenience only and shall not affect the construction of these Terms.
The words "include" and "including" shall be construed without limitation.
A reference to writing or written includes fax and email.