Peoplesafe Personal Safety Ltd. Website Terms of Use and Notices for Users
Peoplesafe Personal Safety Ltd. Website Terms of Use and Notices for Users
Effective Date: July 1, 2014
Last Updated: October 1, 2017
1.
THIS IS AN AGREEMENT BETWEEN YOU AND TRUSTY OX SYSTEMS LTD.
This is an agreement (“Agreement”) between you, the person, proprietorship,
partnership, charity or company or other entity using a Website, a Service or
Software (herein referred to as “You” and/or “Your” as applicable) and Peoplesafe
Personal Safety Ltd. (“PPS”) which has its registered office located at Suite
300-848 Courtney Street, Victoria, BC, V8W 1C4.
NOW THEREFORE, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged by the parties, and in
consideration of the terms and conditions contained herein, the parties agree
as follows:
This Agreement governs Your use of any Website owned or operated by PPS,
Your use of any Services provided by PPS and Your use of any Software developed
by PPS, all of which IS CONDITIONAL ON YOUR ACCEPTANCE OF, AND COMPLIANCE WITH,
THIS AGREEMENT WITHOUT MODIFICATION.
1.1
Definitions
In this Agreement, in addition to other terms defined herein, the following
capitalized terms shall have the following meanings:
(a)
“Agreement” means this Agreement, any confirmation of enrolment email sent to
You confirming the Services subscribed for and/or any subsequent change of
subscription notification email sent to you to confirm revisions to Your
subscribed Services and, if applicable, a mutually agreed and signed Schedule
1, all of which are incorporated herein by reference.
(b)
“Business Day” means a day other than Saturday, Sunday and Statutory Holidays
in the Province of British Columbia, Canada.
(c)
“Charge” means the fees due for any and all Services provided, licenses granted
and access to Websites or Software given by PPS, including any additional
service charges included on Your statement, as set out in this Agreement.
(d)
“Commencement Date” means the date on which You first had access to or used or
installed a Website, a Service or the Software.
(e)
“Confidential Information” means any information of a confidential or
proprietary nature (irrespective of the form of presentation or communication)
relating to the business, operations, customers, sales, processes, budgets,
software, smart phone apps, maps, product information, know-how and strategies
of PPS.
(f)
“Database” means any data entered into or contained within a Website or the
Software, including, but not limited to, that entered by You, Your agents, Your
sub-contractors, Your employees, Your customers or PPS. The Database includes
all of the data held in a Website, or the Software, including any derivative
datasets that may be created from it.
(g)
“Due Date” means the anniversary day of the Commencement Date each calendar
month. For the avoidance of doubt, if Your Commencement Date was March 9, Your
Due Date would be the 9th day of each subsequent calendar
month.
(h)
“Intellectual Property” means all intellectual property rights (whether
registered or unregistered) including but not limited to copyright, database
rights, trade secrets, industrial designs, algorithms, designs, patents, moral
rights and trademarks.
(i)
“Materials” means all documents and information delivered by PPS to You with
respect to a Website or the Software or a Service in any form or medium
whatsoever including, without restricting the generality of the foregoing,
Websites or Software in any media, samples, prototypes, drawings, visual media,
video, printed documents, training material or presentations.
(j)
“Schedule 1” means the document which outlines additional, agreed terms between
You and PPS. Schedule 1 may include, but is not limited to, such details as a
set-up fee, a minimum monthly fee, Your license fee, the fee for Your Service,
additional service level terms, the decision to use the live monitoring
service, live monitoring plan details, voicemail instructions, outside of plan
fees per minute, escalation procedures, live monitoring service termination
points and Your contact details. For the avoidance of doubt, in the absence of
a signed Schedule 1, the Charges outlined on Your invoice each month shall be
deemed the going-rate and You agree to pay these Charges in accordance with the
terms of this Agreement and the Services indicated in any confirmation of
enrolment or subsequent change of subscription notification email are the
Services You have agreed to subscribe for. Any additional terms outlined on
Your invoice each month shall also be deemed the agreed terms for PPS’s
delivery of the Websites, Software or Services to You.
(k)
“Service” means the combination of any Website, Software, documentation,
training, guidance, business processes, video, live monitoring, presentations,
consultancy, support or other services which may be provided by PPS to You in
order to fulfil PPS’s obligations under this Agreement and as confirmed in your
enrolment notification email or modified by a subsequent change of subscription
notification email. For the avoidance of doubt, the Service also includes the
set-up process or data processing done on Your behalf by PPS.
(l)
“Set-up Fee” means the fee payable for the initial set-up of the Website, the
Software and the system in general.
(m)
“Software” means any software supplied by PPS as part of the Service.
This includes, but is not limited to the Website(s) provided by PPS and the
various smart phone applications provided by PPS.
(n)
“Technology” means the apparatus, processes, methods, algorithms, software,
designs, inventions, technical know-how, information and materials, whether or
not they are the subject of the Patents and Registrations, copyright, trade
secrets or other forms of Intellectual Property, owned by PPS and embodied in
the Software, Software updates, Websites or the Materials supplied to You in
any form by PPS pursuant to this Agreement.
(o)
“Term” means the initial term of this Agreement which is one month from the
Commencement Date and all subsequent Renewal Terms.
(p)
“Trademark” refers to the PPS’s trademarks, registered or otherwise, including,
but not limited to “Ok Alone”, or any such other name or design as may be
specified by PPS or used in connection with the Websites or the Software.
(q)
“Website” or “Websites” any website or webpage owned or operated by PPS.
THIS AGREEMENT CONTAINS DISCLAIMERS OF WARRANTIES AND LIABILITY (See
Sections 10, 11, and 12); AND AN EXCLUSIVE REMEDY (See Section 11). THESE
PROVISIONS FORM AN ESSENTIAL BASIS OF OUR BARGAIN. IF YOU DO NOT AGREE TO THESE
TERMS, YOU MUST PROVIDE WRITTEN NOTICE TO PPS THAT YOU WANT PPS’S SERVICES TO
YOU TO BE STOPPED IMMEDIATELY. FAILURE TO PROVIDE SUCH NOTICE WITHIN FOURTEEN
DAYS OF YOUR FIRST ACCESS TO A WEBSITE SHALL BE DEEMED AS YOUR ACCEPTANCE OF
THESE TERMS.
2.
HOW PPS MAY MODIFY THIS AGREEMENT
PPS reserves the right to change the terms, conditions, privacy policies, and
notices under which it offers a Website, a Service or its Software, including
but not limited to any Charges associated with the use of a Website, a Service
or Software, at its sole discretion and without notice. You are responsible for
regularly reviewing these terms, conditions, privacy policies and notices, and
any additional terms posted on a Website, statement, invoice or email. Your
continued use of a Website, Service or Software after the effective date of any
such changes constitutes Your acceptance of and agreement to said changes.
3.
ADDITIONAL TERMS
Any Website, Service or Software may itself contain additional terms (for
example, codes of conduct or guidelines) that further govern use of that
Website, Service or Software, including without limitation, particular features
or benefits (for example, escalation procedures, directions or participation in
an online forum). If any terms contained in this Agreement conflict with any
terms contained within a PPS Website, Service or Software, then the terms in
this Agreement shall control. In addition, Your use of the Websites,
Service and Software are subject to and governed by the terms of PPS’s privacy
policy, which can be viewed at
https://www.okaloneworker.com/work-alone-monitoring-privacy (as may be amended,
restated, replaced or superseded from time to time, the “Privacy
Policy”). The Privacy Policy is incorporated by reference into and forms
part of this Agreement.
4.
LINKED SITES AND SERVICES NOT CONTROLLED BY PPS
PPS prohibits caching, unauthorized hypertext links to the Websites. PPS
reserves the right to disable any unauthorized links or frames and specifically
disclaims any responsibility for any services, software or content
available on any other Internet sites linked to a Website (each, a “Linked
Site”). Access to any Linked Sites is at Your own risk. You should be aware
that Linked Sites may contain rules and regulations, privacy provisions,
confidentiality provisions, transmission of personal data provisions, and other
provisions that differ from the provisions provided in this Agreement or that
may otherwise apply in respect of a Website, Services or Software. PPS is
not responsible for such provisions, and expressly disclaims any and all
liability related to such provisions.
Some of the Websites, Software and/or Services may be accessible, or give
You the ability to use such Software and/or Services, on or through a website,
service or device not controlled by PPS or a PPS Party. For example, You
may download install or access the Software and/or Services through a mobile or
web-based online marketplace or have the option to use the Websites, Software
and/or Services online on servers not owned or controlled by PPS or a PPS
Party, or PPS may make the Websites, Software and/or Services through servers
that are not owned or controlled by PPS or a PPS Party. PPS takes no
responsibility for Your use or access of the Websites, Software and/or Services
through or on any third party website, service or software not controlled by PPS
or a PPS Party and otherwise has no control over how such websites, services or
software are offered, administered or operated. Any such use of serviced
not controlled by PPS is at Your own risk and may subject You to additional or
different terms and conditions imposed by the third party that owns and
controls such websites, services or software.
5.
NO UNLAWFUL OR HARMFUL USE OF THIS WEBSITE
You will not use a Website, Service or Software in any way that is unlawful, or
harms PPS, its affiliates, customers, resellers, distributors, partners and/or
suppliers, Your customers, or any other third parties (each, a “PPS Party” and
collectively, the “PPS Parties”) or any customer of an PPS Party, as determined
in PPS’s sole discretion. PPS may tell You about certain specific harmful uses
in a code of conduct or other notices available through a Website, but has no
obligation to do so. You may not use a Website, Service or Software in any way
that breaches any code of conduct, policy or other notice applicable to a
Website, Service or Software. Without limiting the generality of this section,
You may not use a Website, Service or Software in any manner that could damage,
disable, overburden, or impair any Website, Service or Software (or the network(s)
or servers connected to, hosting or supporting any Website, Service or
Software) or interfere with any other party’s use and enjoyment of any Website,
Service or Software. Failure to do so may result in Your loss of access,
without any recourse by You, to the Website, Service or Software or any
combination thereof.
6.
INFORMATION YOU POST OR PROVIDE; COMMUNICATIONS MONITORING
For information You post or otherwise provide to PPS through a Website, Service
or Software, including but not limited to Your monitor information, worker
information, email, sms, fax, contact details, telephone numbers, logos,
locations, gps co-ordinates, password, escalation procedures, monitoring hours,
account settings, images, trademarks, customer names/addresses or order details
(each, a “Submission”), You grant PPS a perpetual, royalty free,
sub-licensable, fully transferable license to all of Your rights, including any
intellectual property rights and associated moral rights in the Submission
including, but not limited to the rights to (1) use, copy, distribute, transmit,
publicly display, reproduce, edit, modify, translate and reformat Your
Submission and (2) to sublicense these rights, to the maximum extent permitted
by applicable law. At PPS’s sole discretion, PPS may remove Your Submission
from a Website, a Service or Software at any time without recourse by You. For
each Submission, You warrant that You have all rights necessary for You to make
the grants in this section, including, without limiting the generality of the
forgoing, all necessary tights to Intellectual Property in such Submission. To
the maximum extent permitted by applicable law, PPS may monitor Your e-mail, or
other electronic communications and may disclose such information in the event
it has a good faith reason to believe it is necessary for purposes of ensuring
Your compliance with this Agreement, and protecting the rights, property, and
interests of the PPS Parties or any customer of a PPS Party or any governmental
body.
7.
FEEDBACK
Any and all creative suggestions, ideas, notes, drawings, concepts, feedback or
other information that you provide to PPS (collectively, “Feedback”) are deemed
to be the property of PPS and PPS will own all now known or hereafter existing
copyrights and all other intellectual property rights to all Feedback of every
kind and nature, worldwide and in perpetuity, and you hereby assign to PPS all
such Intellectual Property rights to the extent owned by you.
In the event that any of the Feedback is not assignable, you agree that PPS
is irrevocably, throughout the world and in perpetuity, entitled to use
reproduce, modify, adapt, publish, broadcast, license, perform, post, sell,
translate, creative derivative works from and distribute any Feedback for any
purpose whatsoever, commercial or otherwise, in any medium now known or
hereafter devised, without compensation or credit to the provider of the
Feedback, including sublicensing any third party to do any or all of the
foregoing.
You agree, at PPS’s request, to execute such further documents and do such
further acts as may be necessary or desirable to document or enforce PPS’s
ownership of the Feedback, including, without limitation, execution of a
copyright assignment in a form provided by PPS in its sole discretion. If you
fail or refuse to execute any such documents, you hereby appoint PPS as your
attorney in fact, which appointment is coupled with an interest and is
irrevocable, to act on your behalf and to execute, deliver, record and file any
such documents as may be necessary or desirable.
8.
END USER LICENSES
Your use of any Software associated with a Website or a Service will be
governed by the terms and conditions of the end user license agreement (“EULA”)
associated with such Software. PPS reserves all rights to such Software not
expressly granted to You in this Agreement or any such EULA. Such Software is
protected by copyright and other Intellectual Property laws and treaties. PPS
or its suppliers own the title, copyright, and other Intellectual Property
rights in such Software, and such Software is licensed, not sold. You will not
disassemble, decompile, or reverse engineer, such Software, except and only to
the extent that such activity is expressly permitted by applicable law. PPS may
automatically check Your version of such Software and may automatically
download upgrades to such Software to Your computer to update, enhance and
further develop a Website or a Service from time to time.
9.
INFORMATION AVAILABLE FROM THIS WEBSITE
PPS does not warrant or guarantee the accuracy or timeliness of any information
available on a Website, its Software or provided as part of a Service,
including but not limited to Your Submissions or the Submissions of other third
parties, even if such information appears in any e-mail, pager, mobile phone or
other alerts available through a Website. PPS does not authorise the use of
information available from a Website, Service or Software, including financial
and marketing information, for any purpose except to support the operation of
Your business as defined herein, and prohibits to the maximum extent allowable
by law the resale, redistribution, and use of this information for other
commercial purposes.
A Website, a Service or the Software may be unavailable at certain times to
allow for maintenance, upgrades or system outages. Although PPS will endeavour
to notify You in advance of any service unavailability, this cannot be
guaranteed. PPS reserves the right to alter or withdraw the Service or a
Website or the Software for the purposes of maintenance, upgrading, or
repairing damage at any time without recourse by You. Notwithstanding
anything else in this Agreement, PPS does not make any representation or
warranty as to any guaranteed or minimum system availability or “up time” in
respect to any Website, Service or Software.
10.
PPS MAKES NO WARRANTY
PPS PROVIDES ITS WEBSITES, SOFTWARE AND ITS SERVICES “AS IS,” “WITH ALL FAULTS”
AND “AS AVAILABLE,” AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY,
PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED
BY APPLICABLE LAW, PPS MAKES NO REPRESENTATIONS, WARRANTIES OR CONDITIONS,
EXPRESS OR IMPLIED. PPS DISCLAIMS ANY AND ALL WARRANTIES OR CONDITIONS,
EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION (1) WARRANTIES OR
CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE
EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND
NON-INFRINGEMENT, (2) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF
DEALING OR USAGE OF TRADE, AND (3) WARRANTIES OR CONDITIONS THAT ACCESS TO OR
USE OF A WEBSITE, SOFTWARE OR A SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.
THERE ARE NO WARRANTIES THAT EXTEND BEYOND THE FACE OF THIS AGREEMENT.
11.
LIABILITY LIMITATION; YOUR EXCLUSIVE REMEDY
IN NO EVENT WILL PPS OR PPS PARTIES BE LIABLE FOR ANY DAMAGES, INCLUDING
WITHOUT LIMITATION ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, OR
PUNITIVE DAMAGES ARISING OUT OF, BASED ON, OR RESULTING FROM THIS AGREEMENT,
ANY EULA OR YOUR USE OF A WEBSITE, A SERVICE OR SOFTWARE, EVEN IF PPS OR PPS
PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE EXCLUSION OF
DAMAGES IS INDEPENDENT OF YOUR EXCLUSIVE REMEDY AND SURVIVES IN THE EVENT SUCH
REMEDY FAILS OF ITS ESSENTIAL PURPOSE OR IS OTHERWISE DEEMED UNENFORCEABLE.
THESE LIMITATIONS AND EXCLUSIONS APPLY WITHOUT REGARD TO WHETHER THE DAMAGES
ARISE FROM (1) BREACH OF CONTRACT, (2) BREACH OF WARRANTY, (3) NEGLIGENCE, OR
(4) ANY OTHER CAUSE OF ACTION, TO THE EXTENT SUCH EXCLUSION AND LIMITATIONS ARE
NOT PROHIBITED BY APPLICABLE LAW. IF YOU ARE DISSATISFIED WITH A WEBSITE, A
SERVICE OR THE SOFTWARE, OR YOU DO NOT AGREE WITH ANY PART OF THIS AGREEMENT,
OR YOU HAVE ANY OTHER DISPUTE OR CLAIM WITH OR AGAINST PPS OR ANY PPS PARTY
WITH RESPECT TO THIS AGREEMENT, ANY EULA, A WEBSITE, A SERVICE OR SOFTWARE,
THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING SUCH WEBSITE,
SERVICE OR SOFTWARE, AS APPLICABLE.
For the avoidance of doubt, You also agree to indemnify and hold PPS, its
directors and PPS Parties harmless and to keep them indemnified against all
direct or indirect loss, costs, expenses – including legal expenses, damages –
including consequential damages or claims arising from Your use of a Website,
Service or Software.
12.
CHANGES TO A WEBSITE OR SERVICE; ADDITIONAL LIABILITY LIMITATION
PPS MAY CHANGE A WEBSITE, A SERVICE OR SOFTWARE OR DELETE FEATURES IN ANY WAY,
AT ANY TIME AND FOR ANY REASON. AS YOU USE A WEBSITE, A SERVICE, OR SOFTWARE,
YOU SHOULD EXPECT TO RECEIVE, ACCESS OR USE INFORMATION, MATERIALS, GRAPHICS,
SOFTWARE, DATA AND CONTENT (collectively, “Content”) ORIGINATED BY PPS AND PPS
PARITES. WITHOUT LIMITING THE GENERALITY OF SECTIONS 10 AND 11, YOU ACKNOWLEDGE
AND AGREE THAT NEITHER PPS NOR ANY PPS PARTY IS RESPONSIBLE OR LIABLE FOR (1)
ANY CONTENT, INCLUDING WITHOUT LIMITATION, ANY INFRINGING, INACCURATE, OBSCENE,
INDECENT, THREATENING, OFFENSIVE, DEFAMATORY, TORTIOUS, OR ILLEGAL CONTENT, OR
(2) ANY THIRD PARTY CONDUCT, TRANSMISSIONS OR DATA. IN ADDITION, WITHOUT
LIMITING THE GENERALITY OF SECTIONS 10 AND 11, YOU ACKNOWLEDGE AND AGREE THAT PPS
IS NOT RESPONSIBLE OR LIABLE FOR (1) ANY BUGS, VIRUSES, SPYWARE, TROJAN HORSES,
KEYSTROKE LOGGERS, WORMS, TIME BOMBS OR OTHER COMPUTER PROGRAMMING ROUTINES
THAT DAMAGE, DETRIMENTALLY INTERFERE WITH, SURREPTITIOUSLY INTERCEPT OR MINE,
SCRAPE OR EXPROPRIATE ANY SYSTEM, DATA OR PERSONAL INFORMATION OR AFFECT YOUR
ACCESS TO OR USE OF THIS WEBSITE, A SERVICE OR SOFTWARE (2) ANY INCOMPATIBILITY
BETWEEN THIS WEBSITE AND OTHER WEBSITES, SERVICES, SOFTWARE AND YOUR HARDWARE,
(3) ANY DELAYS OR FAILURES YOU MAY EXPERIENCE IN INITIATING, CONDUCTING OR
COMPLETING ANY TRANSMISSIONS OR TRANSACTIONS IN CONNECTION WITH THIS WEBSITE IN
AN ACCURATE OR TIMELY MANNER, OR (4) ANY DAMAGES OR COSTS OF ANY TYPE ARISING
OUT OF OR IN ANY WAY CONNECTED WITH YOUR USE OF ANY SERVICES AVAILABLE FROM
THIRD PARTIES THOUGH LINKS CONTAINED ON THIS WEBSITE, OR (5) THE CONTENT OF ANY
SUBMISSION. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN SECTIONS 10, 11 AND
12 OF THIS AGREEMENT APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW,
AND ARE NOT INTENDED TO DEPRIVE YOU OF ANY MANDATORY PROTECTIONS PROVIDED TO
YOU UNDER APPLICABLE LAW.
13.
TERM; TERMINATION; ACCESS RESTRICTION
13.1 Upon
expiry of the initial one month Term or any one month Renewal Term, the Term of
this Agreement shall continue to automatically renew and extend for successive
one month period (each, a “Renewal Term”) unless terminated by written notice
of termination sent by either party to the other at least one week prior to the
expiration of the then current Term OR this Agreement is terminated under the
early termination provisions of this Section 13 OR Section 21.2.1.
13.2
Notwithstanding PPS’s right to terminate this Agreement at the end of each
Term, PPS may also terminate this Agreement, or terminate or suspend Your
access to a Website, a Service or its Software at any time, with or without
cause, with or without notice at PPS’s sole discretion.
13.3 Upon any
termination or suspension, Your right to use a Website, a Service or the
Software will immediately cease without recourse by You. UPON ANY TERMINATION
OR SUSPENSION, ANY INFORMATION YOU HAVE STORED ON A WEBSITE OR A SERVICE OR IN
THE SOFTWARE MAY NOT BE RETRIEVED LATER EXCEPT AS PROVIDED BY LAW.
13.4 Upon
termination of this Agreement, howsoever occasioned:
(a)
all rights and licenses granted by PPS to You hereunder shall immediately
terminate;
(b)
You shall immediately deliver up, or at the election and direction of PPS
destroy and provide evidence of the destruction satisfactory to PPS, all of the
Materials or Technology, any written or electronic documents or records
containing reference to the Software;
(c)
any fees outstanding up to the effective date of termination shall immediately
become due and payable;
(d)
the termination of this Agreement shall otherwise be without prejudice to any
rights or obligations which shall have accrued prior to such termination and
shall not destroy or diminish the binding force or effect of any of the
provisions of this Agreement which are expressly or by implication provided to
come into force upon or continue in force after such termination.
14.
CHOICE OF LAW AND LOCATION FOR RESOLVING DISPUTES
This Agreement, and any claims for enforcement, breach or violation of duties
or rights under this Agreement, shall be governed by, interpreted and
constituted in accordance with the laws of the British Columbia, Canada,
without reference to conflict of laws principles. All other claims, including,
without limitation, claims under or for violation of consumer protection laws,
unfair competition laws, and in tort, will be adjudicated under the laws of
British Columbia, Canada. Each of You and PPS irrevocably and
unconditionally submits and attorns to the exclusive jurisdiction of the courts
of the Province of British Columbia to determine all issues, whether at law or
in equity, arising from this Agreement. To the extent permitted by applicable law,
each of You and PPS:
14.1
irrevocably waives any objection, including any claim of inconvenient forum,
that it may now or in the future have to the venue of any legal proceeding
arising out of or relating to this Agreement in the courts of that province, or
that the subject matter of this Agreement may not be enforced in those courts;
14.2
irrevocably agrees not to seek, and waives any right to, judicial review by any
court which may be called upon to enforce the judgment of the courts referred
to in this Section 14, of the substantive merits of any suit, action or
proceeding; and
14.3 to the
extent a party has or in the future may acquire any immunity from the
jurisdiction of any court or from any legal process, whether through service or
notice, attachment before judgment, attachment in aid of execution, execution
or otherwise, with respect to itself or its property, that party irrevocably
waives that immunity in respect of its obligations under this Agreement.
15.
INTERPRETING THE AGREEMENT; ASSIGNMENT
If any part of this Agreement is determined to be invalid or unenforceable
pursuant to applicable law, then the invalid or unenforceable provision will be
deemed superseded by a valid, enforceable provision that most closely matches
the intent of the original provision and the remainder of this Agreement will
continue in effect. PPS may assign this Agreement, in whole or in part, at any
time with or without notice to You. You may not assign this Agreement, or
assign, transfer or sublicense Your rights, if any, in a Website, a Service or
the Software. Except as expressly stated herein, this Agreement constitutes the
entire agreement between You and PPS with respect to Websites, Services and
Software and it supersedes all prior or contemporaneous communications and
proposals, whether electronic, oral or written, between You and PPS with
respect to a Website or a Service.
15.1
Formatting
In this Agreement, unless the context otherwise requires:
(a)
the clause headings are included for convenience only and shall not affect the
construction of nor form a part of this Agreement and they are not intended to
interpret, define or limit the scope, extent or intent of this Agreement or any
provision hereof;
(b)
words denoting the singular shall include the plural and vice versa;
(c)
a reference to any statute, enactment, regulation or other similar instrument
shall be construed as a reference to the statute, enactment or regulation as
amended or re-enacted from time to time; and
(d)
the section titles in the Agreement are solely used for the convenience of the
parties and have no legal or contractual significance.
16.
YOU HAVE LIMITED TIME TO BRING YOUR CLAIM
YOU AND PPS AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO A
WEBSITE, A SERVICE OR THE SOFTWARE MUST COMMENCE WITHIN SIX MONTHS AFTER THE
CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
17.
INTELLECTUAL PROPERTY
Copyright, and all other intellectual property rights, in the Websites, the
Software and the Materials are the property of Peoplesafe Personal Safety Ltd.
and/or its licensors, as applicable. All information contained in a
Website, the Software, as part of a Service or the Materials or Technology is
the property of PPS or used by You under license. You may not use, copy or
publish information from a Website, a Service or the Software without PPS’s
prior written consent.
You also covenant and agree not to reverse engineer, replicate, copy,
de-compile or reproduce in any form the Software, Technology or any Website,
nor will you assist others to do so. For the avoidance of doubt, this
includes showing or working with a third party to develop a product or a
service that has a similar look or feel or functionality to the Software or any
Website provided by PPS. Failure to comply with this covenant is deemed a
material breach of this Agreement and subject to further legal action by PPS
against You for damages.
All trademarks, databases, website addresses (i.e. URLs), Submissions,
source code and software are owned by or properly licensed to PPS and may not
be used without prior written consent. For the avoidance of doubt, You agree
and acknowledge that all customer databases, usage data, traffic data,
statistics, website addresses (i.e. URLs), email addresses, customer provided
content and information, website copy and graphic designs are owned by PPS.
Any rights not explicitly granted herein are reserved by PPS.
18.
REPRESENTATIONS
PPS makes no representations about Your business, its quality, its service or
its fitness for purpose. Nor does PPS attest to the availability, technical
merit or legal right of You to provide Your products or services. You accept
full responsibility for the goods and services provided by You regardless of
Your use or reliance on a Website, a Service or Software.
19.
NO WAIVER
PPS’s failure to exercise or delay in exercising any right, power or privilege
under this Agreement shall not operate as a waiver; nor shall any single or
partial exercise of any right, power or privilege preclude any other or further
exercise thereof.
20.
PASSWORD PROTECTION
You agree to keep you password protected and confidential at all times. You are
fully responsible for protection and concealment of all passwords used in Your
use of a Website, a Service or the Software. You therefore agree to
indemnify and hold PPS and its directors harmless against any use, authorised
by You or otherwise, of Your account and/or any Website, Service or Software.
21.
PAYMENT
21.1 All
payments in relation to a Website, a Service or the Software provided by PPS
are non-refundable.
21.2 You
shall pay PPS for Charges in accordance with this Clause 21 and all payments
must have cleared PPS’s bank by the Due Date or You will be subject to
additional service charges.
21.2.1 If Your payment for a Charge is not paid in full
within seven days of the Due Date, You acknowledge and agree that PPS has the
right to immediately suspend access to any and all Services, Websites or
Software AND immediately terminate this Agreement without recourse by You for
losses or damages of ANY kind incurred by You or a third party.
21.3 PPS
shall charge You in advance each month. For the avoidance of doubt, Your
statement shall be dated on either the Commencement Date or the Due Date, and
Your payment in full is immediately due.
21.4 If You
have any questions regarding any Charges that have been applied to Your
account, You must contact PPS in writing within thirty days of the payment Due
Date. Failure to question a Charge within the thirty day period will be deemed
as irrevocable acceptance of the Charge. Failure to use a Website, the Service
or the Software will not be deemed a basis for refusing to pay any Charges
applied to Your account by PPS in accordance with this Agreement.
21.5 All
Charges are expressed exclusive of any value added tax, including but not
limited to the Goods and Services Tax or the applicable Provincial Sales Tax or
the Harmonised Sales Tax. You shall pay all such taxes, in addition to the
Charges, in the manner and at the rates prescribed by law from time to time.
21.6 If You
fail to make any payment to PPS under this Agreement by the Due Date then,
without prejudice to any other right or remedy available to PPS, PPS may charge
You the sum due at the rate of 12% per annum above the base lending rate of the
Bank of Canada prevailing on the Due Date for payment until the date on which
the obligation to pay such sum is discharged.
21.7 PPS
reserves the right to suspend or terminate Your access to a Website, a Service
or the Software without notice upon rejection or failure of completion of any
Charge when PPS believes You are liable for the Charge. Such rights are in
addition to and not in lieu of any other legal rights or remedies available to PPS.
For the avoidance of doubt, charges will continue to accrue despite the loss of
access to a Website, a Service or the Software caused by a Customer’s
non-payment.
21.8
Termination of this Agreement, however caused, will not invalidate any claim by
PPS for monies due prior to termination of this Agreement, and such monies will
remain payable to PPS by You as per the terms and conditions of this Agreement.
21.9 In the
event PPS stops providing the Service due to non-payment by You, You
acknowledge and agree to indemnify PPS against any loss of profit, loss of
business, loss of goodwill, or any indirect or consequential loss whatsoever,
howsoever arising from the loss of a Website, a Service or the Software.
21.10 In the absence of a signed
Schedule 1, You agree to pay the Charges as stated on Your statement.
22.
LICENSE GRANT
Subject to the terms and conditions hereof, and solely for the purpose of
running your business more effectively, PPS hereby grants You a non-exclusive,
non-transferable and non-sub-licensable licence to i) use the Websites, ii) use
the Materials, iii) use the Services and, iii) use, and if applicable, install
the Software, in each case to the extent You have subscribed for the use of
such Website, Materials, Service or Software (other than where made available
by PPS without a subscription). Your license shall begin on the
Commencement Date of this Agreement, and subject to the provisions for earlier
termination, continue for the Term.
23.
SALE OF THIRD PARTY PRODUCTS OR SERVICES
From time to time, PPS may offer third party products or services to You. This
may include, but is not limited to gps hardware and live monitoring
services. You hereby agree and acknowledge that, to the fullest extent
permitted by applicable law, these products or services are sold “as is” with
no warranty intended or implied by PPS.
24.
SERVICE LEVEL OUTLINE – WEBSITES AND SOFTWARE
24.1
Background
PPS has invested in and developed a unique lone worker monitoring system.
The system has two components: a variety of web and software applications that
work together to enable operational efficiencies and the supporting IT
infrastructure and documentation. This Agreement enables You to license
the Website, Services, Software, Materials and to receive the on-going support
services required to help You achieve your organisational goals.
24.2 Service
Description
You wish to improve the operational effectiveness of Your organisation and have
therefore outsourced certain activities and processes to PPS. As such,
the PPS shall provide access to the Websites, Services and Software from the
Commencement Date, subject to the terms of this Agreement.
24.3 Scope
The Service will enable You to monitor Your workforce in an efficient way,
support compliance with health and safety regulations and centralise some of
the communications between field staff and the office The Service is there to
support internal and external emergency response teams (i.e. line managers and
police/ambulance services). It is NOT a replacement for them.
24.4
Boundaries of Service Features and Functions
PPS provides You with a working monitoring system that you can modify and use
in many different and unique ways. However, the operation of the PPS’s
Websites, Software AND the maintenance and the accuracy of the operational data
AND the writing of accurate and effective escalation procedures, remains with
You. For the avoidance of doubt, if You enter a poorly designed escalation
procedure, such as, but not limited to, one without an end point or an
undefined resolution, the consequences of which remain solely with You and you
agree to indemnify and hold PPS and PPS Parties harmless against all such
claims.
24.5 User
Requirements
Your requirements as defined in this Agreement are for a system that can:
(a)
set predetermined check-in times for each lone worker;
(b)
alert a monitor in the event of missed check-in; and
(c)
send help messages to the office/monitor in the event of an emergency.
The above are all provided through the Websites and/or Software being licensed
as part of this Agreement.
24.6 Indicative
Service Level Performance Measures
System availability = 99%
Back-ups = daily
Response time to level 1 calls is one Business Day
Complete disaster recovery within 96 hours
24.7 PPS’s
Responsibilities
The PPS will provide the people, processes and monitoring tools necessary for
the Websites and the Software and:
(a)
meet response times associated with the priority assigned to incidents and
service requests;
(b)
generate annual reports on service level performance when requested; and
(c)
send appropriate notification to You for all scheduled maintenance if possible.
24.8 Your
Responsibilities
Your responsibilities and/or requirements in support of this Agreement include,
but are not limited to:
(a)
using the Websites or the Software in the manner instructed by PPS;
(b)
allocating sufficient staff training time to learn the system;
(c)
utilising the customer service centre for incident reporting;
(d)
contacting PPS for additions or changes in established service levels; and
(e)
promoting the system to your staff, suppliers and stakeholders, thus supporting
smooth operations.
25.
SERVICE LEVEL OUTLINE – LIVE MONITORING
25.1
Background
Organisations sometimes require live monitoring of their staff outside of
normal business hours or when they do not have the necessary people available
in house to do this monitoring. As a result, PPS works with experienced
call centres to provide live monitoring as an additional component of the
Service. In particular, this means that a live person is there to respond
in a way defined by You in the event of an emergency situation.
25.2 Service
Description
You wish to improve the operational effectiveness of Your organisation and have
therefore outsourced certain activities and processes to the PPS. As
such, the PPS shall provide access to a live monitoring service based on these
requirements from the Commencement Date, and subject to the terms of this
Agreement.
25.3 Scope
The live monitoring component of the Service will enable You to monitor Your
workforce in an efficient way, support compliance with health and safety
regulations and centralise some of the communications between field staff and
the office. The Service is there to support internal and external emergency
response teams (i.e. line managers and police/ambulance services). It is NOT a
replacement for them.
25.4
Boundaries of Service Features and Functions
PPS provides You with a working monitoring system that you can modify and use
in many different and unique ways. However, the operation of the PPS’s
Websites, Software and the maintenance AND the accuracy of the operational data
AND the writing of accurate and effective escalation procedures, remains with
You. For the avoidance of doubt, if You enter a poorly designed escalation
procedure, such as, but not limited to, one without an end point or an
undefined resolution, the consequences of which remain solely with You and you
agree to indemnify and hold PPS and PPS Parties harmless against all such
claims.
25.5 User
Requirements
Your requirements as defined in this Agreement are for a system that can:
(a)
turn on or off the live monitoring component of the Service;
(b)
alert a live monitor in the event of missed check-in and give them the approved
procedures to follow based on that alert;
(c)
end the alert after appropriate remedial action has been taken; and
(d)
provide logging of all such activities.
These are all provided through a Website and/or the Software being licensed as
part of this Agreement and/or the Services, specifically the telephone system
used by the call centre.
25.6
Indicative Service Level Performance Measures
System availability = 99%
Back-ups = daily
Target acknowledgement time for each received alert is five minutes or less.
25.7 PPS’s
Responsibilities
The PPS will provide the people, processes and monitoring tools necessary for
the Websites and the Software and will:
(a)
meet response times associated with the priority assigned to incidents and
service requests;
(b)
generate annual reports on service level performance when requested and if
possible; and
(c)
send appropriate notification to You for all scheduled maintenance if possible.
25.8 Your
Responsibilities
Your responsibilities and/or requirements in support of this Agreement include,
but are not limited to:
(a)
using the Websites or the Software in the manner instructed by PPS;
(b)
allocating sufficient staff training time to learn the system;
(c)
utilising the customer service centre for incident reporting;
(d)
contacting PPS for additions or changes in established service levels and/or
escalation procedures; and
(e)
promoting the system to your staff, suppliers and stakeholders, thus supporting
smooth operations.
26.
SERVICE LEVEL – GENERAL
26.1 PPS
customer service centre contact information
Online – www.okaloneworker.com
Phone +1-844-900-0478
Email [email protected]
26.2 Hours of
Coverage
(a)
The PPS shall provide support services during normal office hours, Business
Days between the hours of 9am – 5.00pm, British Columbia time.
(b)
Any additional processing required by You outside of these hours will be
chargeable.
26.3 Response
Times and Escalation
For all requests, the PPS’s goal is to have a staff member assigned and
acknowledge requests within one Business Day of receipt.
26.4
Incidents
(a)
Incident Response: Incidents should be reported to the customer service centre
as detailed above.
(b)
Prioritisation: Incidents will be prioritised based on the following criteria:
(i)
safety of worker;
(ii)
effect on availability of system;
(iii)
proper operation of the system; and
(iv)
improvements/requested changes to the system.
(c)
Service Request Escalation Information: The escalation process shall rise
through the PPS’s standard chain of command.
26.5 Other
Requests
Requests for service features and functions not yet implemented can be
submitted by You to PPS and may be chargeable. Any change to the Website or the
Service or the Software shall be agreed in writing between the parties.
26.6
Maintenance and Service Changes
In the event of a planned service outage, the PPS will endeavour to give You no
less than three days’ notice, although in most cases, such outages will be
planned during non-peak times for You.
26.7
Reviewing and Reporting
You have the right to ask for an operational review once per year. At
such time, PPS may provide performance and availability reports for discussion.
27.
FEE CHANGES
(a)
PPS shall be entitled on one (1) month prior written notice to increase or
decrease Charges or Minimum Monthly Fee payable by You.
(b)
The PPS agrees not to increase either the Charge or the Minimum Monthly Fee for
a period of at least one year after the Commencement Date.