TERMS AND CONDITIONS OF SERVICE AND WEBSITE USE
This page (together with the documents referred to on it) (“Terms”) sets out the terms and conditions on which 5 Safety Limited trading as Event Safety Plan (a company registered in England and Wales under company number 9104730 and with our registered office at The Lancaster Centre, Meteor Business Park, Cheltenham Road East, Gloucestershire GL2 9QL, “we”) shall supply any of the services listed on our website (“Products”) to you. By ordering any of our Products, you agree to be bound by these Terms. You should print a copy of these Terms for future reference.
By requesting the subscription services offered on our website (including any free trials) you accept these Terms. Please understand that if you refuse to accept these Terms, you will not be able to order any Products from our website.
1. THE STATUS OF THESE TERMS
1.1 These Terms constitute the entire agreement between you and us. You acknowledge that you have not relied on any statement, promise or representation given by us or made on our behalf which is not set out in these Terms.
1.2 These Terms apply to the Contract (as defined in paragraph 3 below) to the exclusion of any other terms that you seek to impose or incorporate, or which are implied by trade, custom, practice or course of dealing.
2. SERVICE AVAILABILITY
2.1 Whilst we do not prevent businesses outside of the United Kingdom from using our website, we do not take any steps to ascertain whether the Products comply with any laws, legislation, regulations, practice codes, rules and/or best practices that may apply outside of England and Wales. We do not accept orders from consumers (meaning an individual that does not seek to purchase the Products as part of their business). For the avoidance of doubt charities and not-for-profit organisations do not fall within the definition of “consumers”.
2.2 By placing an order through our website you warrant that you meet the requirements set out in paragraph 2.1 above.
Any subscription request you make (including any free trial we may offer) constitutes an offer to us to buy or use a Product and shall not form a binding contract until we accept the same by sending you an e-mail that confirms that we shall provide the Product.
4. OUR OBLIGATIONS
4.1 We shall provide the Products to you in accordance with the specifications set out in our website in all material respects
4.2 We shall carry out our obligations under these Terms using reasonable care and skill.
4.3 We shall take reasonable steps to check that our Products comply with any health and safety laws, legislation, regulations, practice codes and rules we deem to be applicable to the Products in England and Wales at the time we upload the same onto our website, subject always to paragraph 6.
5. YOUR OBLIGATIONS AND INDEMNITY
5.1 You shall provide us with all necessary cooperation and all necessary access to such information as we may require in order for us to carry out our obligations under the Contract.
5.2 You shall comply with all applicable laws and regulations with respect to your activities under the Contract.
5.3 You shall carry out all your responsibilities under the Contract in a timely and efficient manner.
5.4 You shall be solely responsible for procuring and maintaining your network connections and telecommunications links.
5.5 You shall defend, indemnify and hold us harmless against any claims, losses, damages, expenses and costs (including without limitation any legal fees) arising out of or in connection with your use of our website and/or the Products (save where to the extent that the same is caused by us breaching our obligations under these Terms).
5.6 We shall not be liable for any delay in or inability to comply with our obligations under these Terms, or any loss or damage that you suffer, as a result of your failure to comply with your obligations under these Terms.
6. WEBSITE AND PRODUCT AVAILABILITY
6.1 We shall make the Products available to you during the term of the Contract subject to the conditions of these Terms.
6.2 From time to time our website or features of our website will be unavailable. We do not commit to ensuring that our website or the Products will be available at any particular time.
6.3 We do not commit to ensure that our website or the Products will continue to be published in the future, providing that where reasonably practicable we shall make Your Data (as defined in paragraph 9.2 below) available for a period of six months after we cease to provide the relevant Products.
7. USE OF THE PRODUCTS AND OUR LIABILITY
7.1 You acknowledge and agree that:
7.1.1 you are responsible for your use of the Products and for implementing the measures set out in the Products;
7.1.2 because of the general nature of the Products the information we provide cannot be taken as comprehensive and should never be a substitute for legal or professional advice;
7.1.3 we cannot guarantee that the Products apply to the individual circumstances of your business and that you are responsible for ensuring that the Products comply with your requirements;
7.1.4 we are unable to guarantee that the use of the Products will be sufficient to comply with any applicable health and safety or any other applicable laws, legislation, regulations, practice codes, rules or regulations or the terms of any insurance policy in England and Wales and/or any other territory;
7.1.5 we are not responsible for and do not accept any liability for your compliance with any applicable health and safety or any other applicable laws, legislation, regulations, practice codes, rules or regulations; and
7.1.6 we exclude all liability for any damage or loss you suffer as a result of using or relying upon the Products subject always to paragraph 7.4.
7.2 To the maximum extent permitted by applicable law we exclude all representations, warranties and guarantees relating to our website, the Products and the use of our website and/or the Products (including, without limitation, any warranties implied by law of satisfactory quality, fitness for purpose and/or the use of reasonable care and skill).
7.3 Without prejudice to paragraph 7.2, we do not warrant, represent or guarantee:
7.3.1 the accuracy of the information published on our website or the Products;
7.3.2 the completeness of the information published on this website or set out in the Products;
7.3.3 that the information published on this website or in the Products is up-to-date; or
7.3.4 the information on the website or the Products can be applied to achieve any particular result.
7.4 Nothing in these Terms shall limit or exclude our liability for death or personal injury caused by our negligence or fraud, or where we are prohibited from limiting or excluding such liability by law.
7.5 Subject to paragraphs 7.1 and 7.4 (inclusive):
7.5.1 we 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 the Contract; and
7.5.2 our total aggregate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to 110% of the total fees paid by you to us during the 12 months immediately preceding the date on which the claim arose.
8. PRICE AND PAYMENT
8.1 The price of the Products and our payment terms will be as quoted on our website from time to time, except in cases of obvious error.
8.2 Product prices are liable to change at any time, but changes will not affect Contracts that have already been entered into in accordance with paragraph 3 above unless we provide you with no less than 60 days prior notice.
8.3 If we have not received any payment on the date it is due we shall be entitled to make repeated requests for payment to your bank. If we do not receive payment within 2 days after the due date, and without prejudice to any other rights and remedies we may have, we may disable your access to all or part of the Products and/or our website without liability to you and we shall be under no obligation to allow you access while such sums remain unpaid.
8.4 All amounts and fees stated or referred to in the Contract:
8.4.1 shall be payable in pounds sterling;
8.4.2 are non-cancellable and non-refundable; and
8.4.3 are inclusive of value added tax unless otherwise stated.
9. PROPRIETARY RIGHTS
9.1 You agree that we and/or our licensors own all intellectual property rights in the Products, Software (as defined in paragraph 10.1 below) and our website. Except as expressly stated herein, the Contract does not grant you any rights to, or in, patents, copyrights, database rights, trade secrets, trade names, trade marks whether registered or unregistered or any other rights or licences (“Intellectual Property Rights”) in respect of the Products and/or our website.
9.2 We acknowledge and agree that, notwithstanding paragraph 9.1, you shall retain ownership of any and all information, data and materials that you upload onto our website and/or the Products and any Intellectual Property Rights relating to the same (“Your Data”).
9.3 You shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of Your Data.
9.4 Whilst we have in place archiving procedures for storing data:
9.4.1 in the event of any loss or damage to Your Data, your sole and exclusive remedy shall be for us to use reasonable commercial endeavours to restore the lost or damaged Your Data from the latest back-up of such data maintained by us; and
9.4.2 we shall not be responsible for any loss, destruction, alteration or disclosure of Your Data caused by any third party.
10. SOFTWARE LICENCE
10.1 Subject to the terms and conditions set out in these Terms, we hereby grants to you a non-exclusive, non-transferable right to use the Products and event safety plan generation tools as described on our website (“Software”) during the term of the Contract solely for your internal business operations.
10.2 You undertake that:
10.2.1 you shall keep any password we provide you with or that you use to access the Products and/or the services we offer secure and confidential; and
10.2.2 you shall permit us to audit your use of the Products and the services we provide in order to ensure that you are using the same in accordance with these Terms.
10.3 You undertake that you shall not access, store, distribute or transmit any worms, Trojan horses, viruses or 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, equipment, network or service, equipment or network or any other service or device that we or any of our affiliates (including but not limited to any of our employees, agents, subcontractors and service providers) own and/or use during the course of using the Products, the Software and/or our website.
10.4 You shall not access, store, distribute or transmit any material during the course of using the Products, the Software and/or our website that:
10.4.1 is unlawful or illegal; and/or
10.4.2 causes damage or injury to any person or property;
and we reserve the right, without liability to you, to disable your access to any material that breaches the provisions of this paragraph.
10.5 You shall not:
10.5.1 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 these Terms, 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 Products (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;
10.5.2 access all or any part of the Software and/or Products in order to build a product or service which competes with the Software and/or Products; or
10.5.3 use the Software and/or Products to provide services to third parties;
10.5.4 subject to paragraph 15.3, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the Software and/or Products available to any third party; or
10.5.5 attempt to obtain, or assist third parties in obtaining, access to the Software and/or the Products, other than as provided under this paragraph 10.
10.6 You shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the Software and/or Products and, in the event of any such unauthorised access or use, promptly notify us.
10.7 The rights provided under this paragraph 10 are granted to you only, and shall not be considered granted to any other company within your group.
11.1 Each party may be given access to “Confidential Information” (meaning information that is proprietary or confidential and is either clearly labelled as such or reasonably identifiable as confidential information) from the other party in order to perform its obligations under the Contract. A party’s Confidential Information shall not be deemed to include information that:
11.1.1 is or becomes publicly known other than through any act or omission of the receiving party;
11.1.2 was in the other party’s lawful possession before the disclosure;
11.1.3 is lawfully disclosed to the receiving party by a third party without restriction on disclosure;
11.1.4 is independently developed by the receiving party, which independent development can be shown by written evidence; or
11.1.5 is required to be disclosed by law, by any court of competent jurisdiction or by any regulatory or administrative body.
11.2 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 the implementation of the Contract.
11.3 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 these Terms.
11.4 We shall not be responsible for any loss, destruction, alteration or disclosure of Confidential Information caused by any third party;
11.5 Whilst we acknowledge that Your Data is Confidential Information:
11.5.1 we shall be entitled to access the same where we deem this reasonable (including but not limited to troubleshooting and where we have reason to believe that you have not complied with your obligations under these Terms); and
11.5.2 you shall be solely responsible for ensuring that you are permitted to transfer any individual’s personal data (as defined in the Data Protection Act 1998) to us in accordance with these Terms.
12. TERM AND TERMINATION
12.1 The Contract shall commence on the date on which we notify you that you become a registered user of our website and shall (subject to paragraph 12.3) continue for a minimum term of one month, after which is shall continue until terminated in accordance with paragraph 12.2.
12.2 Either party may terminate the Contract for any reason upon providing notice to the other. Any notice given under this paragraph 12.2 shall take effect on the date on which the next subscription fee is due.
12.3 Without prejudice to any other rights or remedies to which the parties may be entitled, either party may terminate the Contract without liability to the other if:
12.3.1 the other party commits a material breach of any of the terms of the Contract and (if such a breach is remediable) fails to remedy that breach within 14 days of that party being notified in writing of the breach;
12.3.2 an order is made or a resolution is passed for the winding up of the other party, or circumstances arise which entitle a court of competent jurisdiction to make a winding-up order in relation to the other party;
12.3.3 an order is made for the appointment of an administrator to manage the affairs, business and property of the other party, or documents are filed with a court of competent jurisdiction for the appointment of an administrator of the other party, or notice of intention to appoint an administrator is given by the other party or its directors or by a qualifying floating charge holder;
12.3.4 a receiver is appointed of any of the other party’s assets or undertaking, or if circumstances arise which entitle a court of competent jurisdiction or a creditor to appoint a receiver or manager of the other party, or if any other person takes possession of or sells the other party’s assets;
12.3.5 the other party makes any arrangement or composition with its creditors, or makes an application to a court of competent jurisdiction for the protection of its creditors in any way; or
12.3.6 the other party takes or suffers any similar or analogous action in any jurisdiction in consequence of debt.
12.4 On termination of the Contract for any reason:
12.4.1 your right to use our website shall immediately terminate and your subscription shall be terminated;
12.4.2 you shall return and make no further use of any Products, the Software and other items (and all copies of them) belonging to us, save that you shall be entitled to export Your Data prior to termination of the Contract (or, where we have terminated the Contract without notice in accordance with paragraph 12.3, we shall provide you with a copy of Your Data in such format as we may reasonably determine) and that you shall be entitled to use any templates that you have downloaded from our website during the term of your subscription in accordance with these Terms;
12.4.3 we may at our discretion destroy or otherwise dispose of any of Your Data in our possession (save that, where we have terminated the Contract without notice in accordance with paragraph 12.3, we shall provide you with a copy of Your Data in such format as we may reasonably determine); and
12.4.4 the accrued rights of the parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced.
12.5 We may grant you the right to “freeze” your account with us on such terms as we may have in place from time to time. We may at our discretion destroy or otherwise dispose of any of Your Data in our possession if you freeze your account for a period of twelve months or more.
13.1 Any notice required to be given under these Terms shall be in writing and shall be sent by email to the other party’s email address at (firstname.lastname@example.org) (in the case of any notice sent to us) and the email provided by you (in the case of any notice sent to you).
13.2 A notice shall be deemed to have been received at 9am on the business day (meaning any day other than a Saturday, Sunday or public holiday in England where the banks of London are open for business) following successful transmission.
14. VARIATION OF THESE TERMS AND/OR THE PRODUCTS
We have the right to revise and amend these Terms and/or the Products from time to time providing we give you no less than 60 days prior notice of such changes (save where any change is required to be made by law or governmental authority, in which case we shall have the right to revise them immediately upon giving notice to you).
15. MISCELLANEOUS PROVISIONS
15.1 We shall have no liability to you if we are prevented from or delayed in performing our obligations under these Terms by acts, events, omissions or accidents beyond our reasonable control, including, without limitation, strikes, lock-outs or other industrial disputes (whether involving our workforce 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.
15.2 A waiver of any right under these Terms is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and to the circumstances for which it is given. Unless specifically provided otherwise, rights arising under these Terms are cumulative and do not exclude rights provided by law.
15.3 You shall not assign, transfer, charge, sub-contract or deal in any other manner with all or any of your rights or obligations under these Terms without our prior consent. We may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of our rights or obligations under these Terms.
15.4 Nothing in these Terms 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.
15.5 If any provision (or part of a provision) of these Terms is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable or illegal, the other provisions shall remain in force. 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.
15.6 These Terms do not confer any rights on any person or party (other than the parties to these Terms and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.
16. LAW AND JURISDICTION
Contracts for the purchase of Products through our website and any dispute or claim arising out of or in connection with them or their subject matter or formation (including non-contractual disputes or claims) will be governed by English law. Any dispute or claim arising out of or in connection with such Contracts or their formation (including non-contractual disputes or claims) will be subject to the exclusive jurisdiction of the courts of England and Wales.