These are the terms and conditions upon which we provide our services. By doing one or more of the following (i) accepting this agreement by clicking “Subscribe” on the “Payment details” screen of our website or (ii) making payment for or (iii) using our services, you agree to and accept that these terms and any order made by you will form the agreement between us, are incorporated into and form part of our agreement with you and the earliest date that you do this will be the Effective Date of this agreement.
When we use ‘Supplier’ we are referring to HandsHQ Limited incorporated and registered in England and Wales with company number 08356164 whose registered office is at 2 Printer’s Yard, 90A The Broadway, London, SW19 1RD (Supplier) with VAT number is 161 3538 23. When we use ‘Customer’ we are referring to you, a user of our services, as set out in the Order Form.
Our services are provided subject to these terms and conditions. YOUR ATTENTION IS DRAWN TO THE LIMITATION OF LIABILITY AT CLAUSE 12 BELOW. A printed version of the agreement, and of any notice given in electronic form, will be admissible in any judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
(a) The Supplier has developed certain software, products and services which it makes available to Authorised Users via the internet for the purpose of creating and storing documents and managing workforce compliance, including without limitation in relation to health and safety operations. The Service does not offer legal or health and safety advice.
(b) The Customer wishes to use the Supplier’s service in its business operations.
(c) The Supplier has agreed to provide and the Customer has agreed to receive the Supplier’s service subject to the terms and conditions of this agreement.
1.1 The definitions and rules of interpretation in this clause apply in this agreement.
Additional Services: any additional services provided to the Customer by the Supplier as specified in the Order Form, including but not limited to configuration or customisation services.
Additional Services Fees: the fees payable by the Customer to the Supplier for the Additional Services, if any, as set out in the Order Form
Applicable Laws: the Data Protection Legislation and any other law that applies in the UK.
Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the Services in accordance with the terms of this agreement.
Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
Change of Control: shall be as defined in section 1124 of the Corporation Tax Act 2010, and the expression change of control shall be construed accordingly.
Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or obviously confidential in nature.
Customer Data: the data inputted by the Customer, Authorised Users, or the Supplier on the Customer’s behalf for the purpose of using the Services or facilitating the Customer’s use of the Services, including any other documentation or information uploaded to the Service by the Customer or at the Customer’s request.
Data Protection Legislation: any data protection legislation from time to time in force in the UK including the Data Protection Act 2018 or any successor legislation.
Documents: health and safety document templates made available to the Customer as a part of the Services.
e-Learning: has the definition set out in Clause 5.
Effective Date: the date of this agreement.
Fees: Additional Services Fees and or Subscription Fees, as appropriate.
Initial Subscription Term: the initial twelve-month term of this agreement, unless specified otherwise in any Order Form.
Normal Business Hours: 9.30 am to 5.30 pm local UK time, each Business Day.
Order Form/s: the order form which contains details of the Customer’s order comprising the Customer’s name and other details on the sign-up page, the name of the Subscription purchased as listed on the “Payment details” page and as described on the “Pricing” page of the Supplier’s website, and including any subsequent orders.
Project: a risk assessment and method statement.
RAMS: the Supplier’s risk assessment method statement product available via www.handshq.com or any other website notified to the Customer by the Supplier from time to time.
Renewal Period: the period described in clause 13.1.
Services: the services provided by the Supplier to the Customer under this agreement via www.handshq.com or any other website notified to the Customer by the Supplier from time to time such as RAMS, the Training Register, or e-Learning, including any Documents, Software and/or Additional Services made available by the Supplier as part of the Service, as applicable and as amended and updated by the Supplier from time to time.
Software: the online software applications provided by the Supplier as part of the Services.
Subscription Fees: the subscription fees payable by the Customer to the Supplier for the Subscription, as set out in the Order Form.
Subscription Limits: the limits on each Subscription as detailed in the Order Form on the usage of the Services purchased, including a limit on the number of Projects that can be created on RAMS per month, the number of personnel whose records can be kept on the Training Register, or the number of Authorised Users that can use each Service.
Subscription Term: has the meaning given in clause 13.1 (being in relation to an annual subscription the Initial Subscription Term together with any subsequent Renewal Periods and in relation to a monthly subscription the period from the Effective Date until the date of termination).
Subscription: the subscription purchased by the Customer pursuant to clause 8.1 for Services as listed on the “Payment details” page of the Supplier’s website and as detailed together with the Subscription Limits on the “Pricing” page, which entitles Authorised Users to access and use the Services in accordance with this agreement.
Training Register: the workforce compliance product available via www.handshq.com or any other website notified to the Customer by the Supplier from time to time.
Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
1.2 Clause, schedule and paragraph headings shall not affect the interpretation of this agreement. The Schedules (Order Form/s) form part of this agreement and shall have effect as if set out in full in the body of this agreement. Any reference to this agreement includes the Schedules.
1.3 A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality) and that person’s legal and personal representatives, successors or permitted assigns.
1.4 Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
1.5 Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
1.6 A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement and shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
2.1 Subject to the Customer purchasing the Subscription in accordance with clause 8.1, the Subscription Limits, and the restrictions set out in this clause 2 and the other terms and conditions of this agreement, the Supplier hereby grants to the Customer a non-exclusive, non-transferable right to permit the Authorised Users to use the Services during the Subscription Term solely for the Customer’s internal business operations and subject to any Document or other limits specified in the Order Form. In addition, and subject to clause 13.3, the Customer is permitted to download any completed template documents in PDF format and utilise these for the Customer’s business purposes as contemplated by this agreement, without restriction save that any mark on the documents indicating Supplier’s status as authors of the material, and that of any identified contributors, must not be removed.
2.2 In relation to the Authorised Users, the Customer undertakes that:
(a) each Authorised User shall keep a secure password for his use of the Services, and that each Authorised User shall keep his password confidential;
(b) it shall permit the Supplier to audit the use of the Services. Such audit may be conducted no more than once per quarter, at the Supplier’s 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; and
(c) if any of the audits referred to in clause 2.2(b) reveal that the Customer has underpaid Subscription Fees to the Supplier, then without prejudice to the Supplier’s other rights, the Customer shall pay to the Supplier an amount equal to such underpayment as calculated in accordance with the Supplier’s current prices within 10 Business Days of the date of the relevant audit.
2.3 The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the Services that:
(a) is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
(b) facilitates illegal activity;
(c) depicts sexually explicit images;
(d) promotes unlawful violence;
(e) is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
(f) in a manner that is otherwise illegal or causes damage or injury to any person or property; and the Supplier reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.
2.4 The Customer shall not:
(a) except as may be allowed by any applicable law which is incapable of exclusion by agreement between the parties:
- and except to the extent expressly permitted under this agreement, attempt to copy, modify, duplicate, create derivative works from, frame, mirror, republish, download, display, transmit, or distribute all or any portion of the Software and/or Documents (as applicable) in any form or media or by any means; or
- attempt to reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
(b) access all or any part of the Services in order to build a product or service which competes with the Services; or
(c) use the Services to provide services to third parties except to the extent expressly permitted under this agreement or agreed in writing by Supplier; or
(d) subject to clause 18.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit the Services to any third party, or
(e)attempt to obtain, or assist third parties in obtaining, access to the Services, other than as expressly permitted by this agreement; and
2.5 The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Services and, in the event of any such unauthorised access or use, promptly notify the Supplier and shall ensure that all Authorised Users accessing the Service on the Customer’s behalf act in compliance with the terms of this agreement. The Customer shall be responsible for any Authorised User's breach of this agreement.
2.6 The rights provided under this clause 2 are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.
2.7 The Customer shall:
(a) provide the Supplier with:
- all necessary co-operation in relation to this agreement;
- all necessary access to such information as may be required by the Supplier, in order to provide the Services, including but not limited to Customer Data, security access information and configuration services;
(b) without affecting its other obligations under this agreement, comply with all applicable laws and regulations with respect to its activities under this agreement;
(c) carry out all other Customer responsibilities set out in this agreement in a timely and efficient manner including appointing a competent project manager. In the event of any delays in the Customer's provision of such assistance as agreed by the parties, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(d) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(e) ensure that its network and systems comply with the relevant specifications provided by the Supplier from time to time; and
(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier's data centres, 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.
2.8 Subject to clause 2.9 and clause 2.10, the Customer may, from time to time during the Subscription Term, increase the Subscription Limits for its Subscription as set out in the Order Form and the Supplier shall increase such Subscription Limits in accordance with the provisions of this agreement.
2.9 If the Customer wishes to increase the Subscription Limits for its Subscriptions, the Customer may do so by using the functionality made available via the Software, in consideration for payment by it of any additional or increased Subscription Fees as are notified to it at the point of purchase. Where the Customer increases its Subscription Limits in this way, the Order Form shall be deemed to be amended accordingly and the increase shall be implemented with immediate effect following payment.
2.10 The Customer shall immediately pay to the Supplier the relevant fees for such any increased Subscription Limits purchased in accordance with clause 2.9 at the time and point of purchase via the Software and, if such increased Subscription Limits are purchased by the Customer part way through the Initial Subscription Term or any Renewal Period (as applicable), the parties may agree either: (i) that such fees shall be pro-rated from the date of activation by the Supplier for the remainder of the Initial Subscription Term or then current Renewal Period (as applicable); or (ii) that the Initial Subscription Term or then current Renewal Period (as applicable) shall be extended so to renew on the date falling one year after the date of the increase being implemented. In the case of a monthly subscription, the Supplier shall pay the relevant fees for such increased Subscription Limits on the date on which they are activated, and the same date in each following month on which the Subscription Fees are payable for the existing Subscriptions.
2.11 Any undertaking (given by the Supplier on its website or otherwise) to repay all or part of any monies received from the Customer within a certain period of the date of this agreement shall be conditional upon the Customer complying with its obligations under clause 2.4.
3.1 The Supplier shall, during the Subscription Term, provide the Services to the Customer on and subject to the terms of this agreement.
3.2 The Supplier shall use commercially reasonable endeavours to make the Services available, except for any periods of required maintenance which Supplier deems necessary. The Supplier will use reasonable endeavours to give the Customer advance notice by email or an in-app message (where this is practicable).
3.3 The Supplier will, as part of the Services and at no additional cost to the Customer, provide the Customer with the Supplier’s standard customer support services during Normal Business Hours via email@example.com or the online chat facility on the Supplier’s website www.handshq.com.
4. CUSTOMER DATA
4.1 The Customer shall own all right, title and interest in and to all of the Customer Data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data and hereby grants to Supplier, and its affiliates and sub-contractors, permission to use, including without limitation to copy, edit, display or transmit, the Customer Data in connection with the provision of the Services only (and including in order to test new products and functionality and fix any defects or bugs in the Services).
4.2 The Supplier shall back up Customer Data in accordance with good industry practice. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy shall be for the Supplier to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by the Supplier. The Supplier shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by the Supplier to perform services related to Customer Data maintenance and back-up).
4.3 Both parties will comply with all applicable requirements of the Data Protection Legislation. This clause 4 is in addition to, and does not relieve, remove or replace, a party's obligations under the Data Protection Legislation.
4.5 Without prejudice to the generality of clause 4.3, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to the Supplier for the duration and purposes of this agreement.
4.6 Without prejudice to the generality of clause 4.3, the Supplier shall, in relation to any Personal Data processed in connection with the performance by the Supplier of its obligations under this agreement:
(a) process that Personal Data only on the written instructions of the Customer unless the Supplier is required by Applicable Laws to otherwise process that Personal Data. Where the Supplier is relying on laws of a member of the European Union or European Union law as the basis for processing Personal Data, the Supplier shall promptly notify the Customer of this before performing the processing required by the Applicable Laws unless those Applicable Laws prohibit the Supplier from so notifying the Customer;
(b) ensure that it has in place appropriate technical and organisational measures to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
(c) ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
(d) not transfer any Personal Data outside the UK or European Economic Area unless the following conditions are fulfilled:
- the Customer or the Supplier has provided appropriate safeguards in relation to the transfer;
- the data subject has enforceable rights and effective legal remedies;
- the Supplier complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
- the Supplier complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
(e) assist the Customer, at the Customer's cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
(f) notify the Customer without undue delay on becoming aware of a Personal Data breach;
(g) at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Applicable Law to store the Personal Data; and
(h) maintain complete and accurate records and information to demonstrate its compliance with this clause
4.7 The Customer consents to the Supplier appointing third-party processors of Personal Data under this agreement. The Supplier confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement incorporating terms which are substantially similar to those set out in this clause 4 and that it will notify the Customer of any change in the identity of those third-party processors after the date of this agreement. As between the Customer and the Supplier, the Supplier shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to this clause 4.7.
4.8 Either party may, at any time on not less than 30 days’ notice, revise this clause 4 by replacing it with any applicable controller to processor standard clauses or similar terms forming party of an applicable certification scheme (which shall apply when replaced by attachment to this agreement).
5. E-LEARNING AND THIRD PARTY PROVIDERS
5.2 Supplier may offer as part of the Services training courses and materials (“e-Learning”) which shall be provided by third parties. The fees for such e-Learning shall be communicated to Customer at the time of purchase. In some cases, Customer may purchase credits from Supplier which can be redeemed in respect of certain e-Learning content provided by specific third-party providers. Customer shall pay any relevant fees to be paid for e-Learning content or credit purchased at the time of purchase.
5.4 Customer acknowledges and agrees that the content and availability of e-Learning may vary from time to time, and third-party providers may modify e-Learning or cease making certain e-Learning available without giving notice to the Customer.
5.5 The Customer acknowledges and agrees that it shall have no intellectual property rights in and to any of the e-Learning and no warranty or guarantee regarding the validity or enforceability of the intellectual property rights in the e-Learning is given to the Customer. Customer shall have no right to copy, modify, adapt or deal in any way with any of the e-Learning and shall only be granted those limited rights to receive the e-Learning for its own internal business purposes, and subject to any terms and conditions imposed by the provider of such e-Learning.
5.6 The Customer shall not use or display any accrediting body marks as a result of attending or viewing any of the e-Learning without the express written permission of Supplier in writing. Customer agrees to indemnify the Supplier on a defend and settle basis against any and all direct losses suffered by Supplier through any misuse by Customer using an accrediting body mark in contravention of this clause.
5.7 Access to the e-Learning may be terminated by Supplier at any time, and upon doing so Supplier shall refund any fees paid by Customer for e-Learning not yet provided or credits not yet redeemed.
6. SUPPLIER’S OBLIGATIONS
6.1 The Supplier undertakes that the Services will be performed with reasonable skill and care.
6.2 The undertaking at clause 6.1 shall not apply to the extent of any non-conformance which is caused by use of the Services contrary to the Supplier’s instructions, or modification or alteration of the Services by any party other than the Supplier or the Supplier’s duly authorised contractors or agents. If the Services do not conform with the foregoing undertaking, Supplier will, at its expense, use all reasonable commercial 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 6.1. Notwithstanding the foregoing, the Supplier:
(a) does not warrant that the Customer’s use of the Services will be uninterrupted or error-free; or that the Services will meet the Customer’s requirements; and
(b) is not acting as a health and safety business, advisor or consultant and does not offer health and safety advice and the Service are not warranted to be complete or up to date; and
(c) 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 may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
6.3 This agreement shall not prevent the Supplier from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or services which are similar to those provided under this agreement.
6.4 The Supplier warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under this agreement.
7. CUSTOMER’S OBLIGATIONS
7.1 The Customer shall:
(a) comply with all applicable laws and regulations with respect to its activities under this agreement;
(b) 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, the Supplier may adjust any agreed timetable or delivery schedule as reasonably necessary;
(c) ensure that the Authorised Users use the Services in accordance with the terms and conditions of this agreement and shall be responsible for any Authorised User’s breach of this agreement;
(d) obtain and shall maintain all necessary licences, consents, and permissions necessary for the Supplier, its contractors and agents to perform their obligations under this agreement, including without limitation the Services;
(e) ensure that its network and systems comply with the relevant specifications set out by the Supplier in the Order Form, if any; and
(f) be solely responsible for procuring and maintaining its network connections and telecommunications links from its systems to the Supplier’s 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.
8. CHARGES AND PAYMENT
8.1 The Customer shall pay the Subscription Fees and Additional Services Fees (if any) to the Supplier in accordance with this clause 8 and the Order Form.
8.2 The Customer shall on or prior to the Effective Date provide to the Supplier valid, up-to-date and complete contact, payment and/or billing details and, if the Customer provides:
(a) its credit card details to the Supplier, the Customer hereby authorises the Supplier to bill such credit card:
- in the case of an annual subscription, on the Effective Date for the Subscription Fees and Additional Services Fees, as applicable, payable in respect of the Initial Subscription Term; and, subject to clause 13 (earlier termination), on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period;
- in the case of a monthly subscription, on the Effective Date and the same date in each following month for the monthly fees;
(b) its approved purchase order information to the Supplier, the Supplier shall invoice the Customer:
- in the case of an annual subscription, on the Effective Date for the Subscription Fees and Additional Services Fees, as applicable, payable in respect of the Initial Subscription Term; and
- subject to clause 13 (earlier termination) for annual subscriptions only, prior to or on each anniversary of the Effective Date for the Subscription Fees payable in respect of the next Renewal Period, and the Customer shall pay each invoice within 30 days after the date of such invoice.
8.3 If the Supplier has been unable for any reason to recover payment from the Customer (whether via its credit/debit card or otherwise) on the due date, and without prejudice to any other rights and remedies of the Supplier, the Supplier may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Supplier shall be under no obligation to provide any or all of the Services while the payment(s) concerned remain unpaid.
8.4 All amounts and fees stated or referred to in this agreement:
(a) shall be payable in pounds sterling;
(b) are, subject to the 30 day guarantee provided at clause 13.1(b), non-cancellable and non-refundable;
(c) are exclusive of value added tax, which shall be added at the appropriate rate.
8.5 The Supplier shall be entitled to increase the Subscription Fees at the start of each Renewal Period upon prior written notice to the Customer and this agreement shall be deemed to have been amended accordingly, save that fees cannot be increased more than once in any twelve-month period.
9. PROPRIETARY RIGHTS
9.1 The Customer acknowledges and agrees that the Supplier and/or its licensors own all intellectual property rights in the Services. 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.
9.2 The Supplier 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.
10.1 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:
(a) is or becomes publicly known other than through any act or omission of the receiving party;
(b) was in the other party’s lawful possession before the disclosure;
(c) is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
(d) is independently developed by the receiving party, which independent development can be shown by written evidence; or
(e) is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
10.2 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 as contemplated by this agreement.
10.3 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.
10.4 The above provisions of this clause 10 shall survive termination of this agreement, however arising.
11.1 The Customer shall defend, indemnify and hold harmless the Supplier against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the Services, provided that:
(a) the Customer is given prompt notice of any such claim;
(b) the Supplier provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
(c) the Customer is given sole authority to defend or settle the claim.
11.2 The Supplier shall defend the Customer, its officers, directors and employees against any claim that the Services infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
(a) the Supplier is given prompt notice of any such claim;
(b) the Customer provides reasonable co-operation to the Supplier in the defence and settlement of such claim, at the Supplier’s expense; and
(c) the Supplier is given sole authority to defend or settle the claim.
11.3 In the defence or settlement of any claim, the Supplier may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 5 Business Days’ notice to the Customer without any additional liability or obligation to the Customer.
11.4 In no event shall the Supplier, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
(a) a modification of the Services by anyone other than the Supplier; or
(b) the Customer’s use of the Services in a manner contrary to the instructions given to the Customer by the Supplier; or
(c) the Customer’s use of the Services after notice of the alleged or actual infringement from the Supplier or any appropriate authority; or
(d) the content of any e-Learning delivered by a third party via the Services.
11.5 The foregoing and clause 12.4(b) state the Customer’s sole and exclusive rights and remedies, and the Supplier’s (including the Supplier’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.
12. LIMITATION OF LIABILITY
12.1 This clause 12 sets out the entire financial liability of the Supplier (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Customer:
(a) arising under or in connection with this agreement;
(b) in respect of any use made by the Customer of the Services or any part of them; and
(c) in respect of any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
12.2 Except as expressly and specifically provided in this agreement:
(a) the template documents made available to you as part of the Service are templates reasonably fit for use by you as a starting point for the preparation of your health and safety documents, to be adapted by you as you deem appropriate to meet your individual requirements. The Supplier will use its reasonable efforts to keep the Services and Software reasonably accurate but Supplier makes no representations about the suitability, reliability, availability, timeliness and accuracy thereof and they should not be relied upon for personal, medical, legal or financial decisions and you should consult an appropriate professional for specific advice tailored to your situation. Further, the Supplier makes no representations about the suitability, reliability, availability, timeliness and accuracy of the e-Learning provided by third parties and accessible through the Services and the Customer acknowledges that the Customer is responsible for ensuring the suitability of such e-Learning;
(b) the Customer assumes sole responsibility for results obtained from the use of the Services, including but not limited to the template documents created by the Customer, and for conclusions drawn from such use. The Supplier shall have no liability for any damage caused by errors or omissions in any information, instructions, templates, documents or scripts provided to the Supplier by the Customer in connection with the Services, or any actions taken by the Supplier at the Customer’s direction;
(c) the Customer assumes sole responsibility for updating the Training Register and ensuring that the information contained within the Training Register is accurate, correct and complete (including where such information is inputted by the Supplier on the Customer’s request);
(d) all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement; and
(e) the Services are provided to the Customer on an “as is” basis.
12.3 Nothing in this agreement excludes the liability of the Supplier:
(a) for death or personal injury caused by the Supplier’s negligence; or
(b) for fraud or fraudulent misrepresentation.
12.4 Subject to clause 12.2 and clause 12.3:
(a) the Supplier 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; and
(b) the Supplier’s total aggregate liability in contract (including in respect of the indemnity at clause 11.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited to the total Fees paid for the Services during the 12 months immediately preceding the date on which the claim arose.
13. TERM AND TERMINATION
13.1 This agreement shall if it is an annual subscription, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall continue for the Initial Subscription Term and, thereafter, this agreement shall be automatically renewed for successive periods of 12 months (each a Renewal Period), unless:
(a) the Supplier notifies the Customer of termination, in writing, at least 7 days (or such period as the Supplier shall notify to you in writing from time to time) before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(b) the Customer notifies the Supplier of termination via the Software before the end of the Initial Subscription Term or any Renewal Period, in which case this agreement shall terminate upon the expiry of the applicable Initial Subscription Term or Renewal Period; or
(c) the Customer notifies the Supplier via the Software that it wishes to exercise the 30-day money back guarantee which must be exercised within the first 30 calendar days of the Initial Subscription Term and can only be exercised on one occasion per Customer; or
(d) otherwise terminated in accordance with the provisions of this agreement;
(e) and the Initial Subscription Term together with any subsequent Renewal Periods shall constitute the Subscription Term.
13.2 This agreement shall if it is a monthly subscription, unless otherwise terminated as provided in this clause 13, commence on the Effective Date and shall be automatically renewed for successive periods of 1 month, unless:
(a) the Supplier gives at least 7 days’ (or such period as the Supplier shall notify to you in writing from time to time) notice of termination, in writing, to the Customer;
(b) the Customer notifies the Supplier of termination at any time via the Software, in which case this agreement shall terminate upon the expiry of the current one-month term.
13.3 If a monthly subscription is converted to an annual subscription by agreement of the Supplier at any time then clause 13.1 shall apply from the date of conversion and such portion of the Subscription Fees as the unexpired portion of the Initial Subscription Period (or as the case may be Renewal Period) bears to 12 months shall be payable on the date of conversion.
13.4 Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
(a) 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;
(b) 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 (being a company or limited liability partnership) is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986, or becomes insolvent or an order is made or a resolution passed for the administration, wining-up or dissolution of the other (otherwise than for the purpose of a solvent amalgamation or reconstruction) or an administrative or other receiver, manager, liquidator, administrator, trustee or similar officer is appointed over all or any substantial part of the assets of the other or the other enters into or proposes any composition or arrangement with its creditors generally or any analogous event occurs in any applicable jurisdiction;
(c) the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business; or
(d) there is a change of control of the Customer/other party.
13.5 On termination of this agreement for any reason:
(a) all licences granted under this agreement shall immediately terminate, save that where Customer is not in breach of the terms of agreement and has not exercised the 30 day money back guarantee provided at clause 13.1(b), Customer shall be permitted to make continued use of completed template documents in accordance with the provisions of clause 2.1;
(b) all Fees will become payable immediately;
(c) the Supplier may destroy or otherwise securely dispose of any of the Customer Data in its possession;
(d) 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; and
(e) in the case of a termination by the Customer in accordance with clause 13.1(b), the Supplier shall refund the Subscription Fees element of the fees paid but any Additional Services Fees will remain payable and the Customer will not be permitted to make further use of any completed template documents.
14. FORCE MAJEURE
The Supplier shall have no liability to the Customer under this agreement if it is prevented from or delayed in performing its obligations under this agreement, or from carrying on its business, by acts, events, omissions or accidents beyond its reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving the workforce of the Supplier or any other party), failure of a utility service or transport or telecommunications network, act of God, war, riot, civil commotion, malicious damage, compliance with any law or governmental order, rule, regulation or direction, accident, breakdown of plant or machinery, fire, flood, storm or default of suppliers or sub-contractors, provided that the Customer is notified of such an event and its expected duration.
No failure or delay by a party to exercise any right or remedy provided under this agreement or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
16.1 If any provision (or part of a provision) of this agreement is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force.
16.2 If any invalid, unenforceable or illegal provision would be valid, enforceable or legal if some part of it were deleted, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
17. ENTIRE AGREEMENT
17.1 This agreement, and any documents referred to in it, constitute the whole agreement between the parties and supersede any previous arrangement, understanding or agreement between them relating to the subject matter they cover.
17.2 Each of the parties acknowledges and agrees that in entering into this agreement it does not rely on any undertaking, promise, assurance, statement, representation, warranty or understanding (whether in writing or not) of any person (whether party to this agreement or not) relating to the subject matter of this agreement, other than as expressly set out in this agreement.
18.1 The Customer shall not, without the prior written consent of the Supplier, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
18.2 The Supplier may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
19. NO PARTNERSHIP OR AGENCY
Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
20. THIRD PARTY RIGHTS
This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
21. NOTICES AND VARIATION
21.1 Any notice required to be given under this agreement, including those regarding changes to these terms and conditions, shall be in writing and shall be delivered by hand or sent by pre-paid first-class post or recorded delivery post to the other party at its address set out in this agreement, or such other address (including email) as may have been notified by that party expressly for such purposes, or in the case of Supplier may be posted on the suppliers website or other reasonable means now known or developed in the future. The Customer shall not be entitled to vary the Services without the prior written consent of the Supplier, which consent may be withheld at its absolute discretion.
21.2 A notice delivered by hand shall be deemed to have been received when delivered (or if delivery is not in business hours, at 9 am on the first business day following delivery). A correctly addressed notice sent by pre-paid first-class post or recorded delivery post shall be deemed to have been received at the time at which it would have been delivered in the normal course of post. A notice sent by fax shall be deemed to have been received at the time of transmission (as shown by the timed printout obtained by the sender).
Unless the Customer notifies the Supplier to the contrary in writing, the Customer acknowledges and agrees that the Supplier shall be entitled to: (a) publish that the Customer is a customer of the Supplier for the Supplier’s marketing purposes; and, (b) use the Customer’s then current trade mark logo and name on the Supplier’s web site and on social media and networking channels. The Customer further agrees to collaborate with the Supplier from time to time to produce and publish customer comments, endorsements, case studies and other instances of advocacy, for the purposes of marketing, which the Customer shall have a right to amend and / or approve before publication. Whilst the Supplier will use all reasonable endeavours to ensure best practice, you agree that the Supplier cannot be held liable for any inaccuracies or errors in either the Supplier marketing materials or third-party marketing materials. In the event that the Customer withdraws its consent to some or all of the above activities, the Supplier will promptly cease using the Customer’s name and trade mark logo and take down any previously published material which markets the parties’ connection. Notwithstanding the foregoing, the Customer acknowledges that the Supplier will not have any responsibility for or liability in relation to removing any previously published material which has been downloaded or shared by previous viewers of that material.
23. 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 law of England and Wales.
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).