Terms and Conditions. Revision 01 Date: 22.08.17
Please read these Terms and Conditions, carefully before using our Services or registering for a chargeable subscription for the Services offered on this website operated by Galaxsea AS, Sundveien 8, 1397 Nesøya, Norway, Company reg. No. 998 743 389 MVA.
By using our Website or App or by registering for a free trial or chargeable subscription for the Services at www.bsafer.com and clicking on the accept buttons relating to our Terms and Conditions and Privacy Policy, you the Customer agree to be legally bound by these Terms and Conditions and Privacy Policy as they may be modified and posted on our website from time to time. In the event of any inconsistency between the content of the Terms and Conditions and the Privacy Policy, the provisions of the Terms and Conditions shall prevail followed by the Privacy Policy.
If you do not wish to be bound by these Terms and Conditions and Privacy Policy then you may not use the App or Website, or purchase any Services.
1. Definitions
In this Agreement, the following words shall have the following meanings:
“Agreement”
means these Terms and Conditions and the Privacy Policy together;
“App”
means the software app that can be downloaded by Authorised Users to access the Services;
“Authorised User”
means employees, agents, consultants or independent contractors of the Customer who have been expressly authorised by the Customer to receive a password in order to access the Services or who are permitted to access to the Services via the App;
“Business Day”
means any day (other than a Saturday or Sunday) on which clearing banks are open for normal banking business in the city of London;
“Business Hours”
means 9.00am – 4.00pm (Norwegian time) on Business Days;
“Company” or “our”
means Galaxsea AS;
“Commencement Date”
means the date on which the Customer registers for free Services on the Company website;
“Confidential Information”
means any and all information in whatsoever form relating to the Company or the Customer, or the business, prospective business, finances, technical processes, computer software (both source code and object code), Intellectual Property Rights or finances of the Company or the Customer (as the case may be), or compilations of two or more items of such information, whether or not each individual item is in itself confidential, which comes into a party’s Company’s possession by virtue of its entry into this Agreement, use of our website or App or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information;
“Consequential Loss”
means any indirect or consequential loss of damage which shall include but not be limited to: (i) pure economic loss; (ii) special loss; (iii) losses incurred by any client of the Customer or other third party; (iv) loss of profits (whether categorised as direct or indirect loss); (v) losses arising from business interruption; (vi) loss of business revenue, goodwill or anticipated savings; (vii) losses whether or not occurring in the normal course of business, wasted management or staff time and; (viii) loss or corruption of data;
“Customer Data”
means all data imported into the Services for the purpose of using the Services or facilitating the Customer’s or Authorised User’s use of the Services;
“Customer” or “you”
means the company or person who completes the online registration form for use of the Services;
“Effective Date”
means the date on which payment for the Services is confirmed via Stripe or via receipt of funds into Company´s bank;
“Feedback”
means feedback, innovations or suggestions created by Authorised Users or the Customer or users regarding the attributes, performance or features of the Services;
“Fees”
means the fees set out on the bSafer Website or as agreed directly between Customer and Company;
“Force Majeure”
means anything outside the reasonable control of a party, including but not limited to, acts of God, fire, storm, flood, earthquake, explosion, accident, acts of the public enemy, war, rebellion, insurrection, sabotage, epidemic, quarantine restriction, labour dispute, labour shortage, power shortage, including without limitation where Company ceases to be entitled to access the Internet for whatever reason, server crashes, deletion, corruption, loss or removal of data, transportation embargo, failure or delay in transportation, any act or omission (including laws, regulations, disapprovals or failures to approve) of any government or government agency;
“Initial Term (Free Trial Period)”
means a period from the Commencement Date to the expiry of the Free Trial Period or Effective Date whichever is the earlier;
“Intellectual Property Rights”
means all copyrights, patents, utility models, trademarks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, know-how, database rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world;
“Operating Rules”
means any Company rules or protocols, in whatever form recorded or set, that affect the Customer’s access to or use of the Services, and made available by the Company from time to time to the Customer;
“Order Form”
means the online order form where the Customer orders Services;
“Privacy Policy”
means the Company privacy policy published at www.getbsafer.com and as amended from time to time;
“Renewal Term”
means the period after the expiry of the Initial Term, until the Agreement is terminated by either party pursuant to its provisions;
“Services”
means the ‘bsafer’ safety, quality and risk management software application, both the web based database and the associated mobile app of Company, ordered online by the Customer;
“Term”
means the Initial Term and all Renewal Terms together (as applicable);
“Terms and Conditions”
means these terms and conditions published at www.getbsafer.com and as amended from time to time;
“Updates”
means any new or updated applications services or tools (including any computer software programmes) made available by the Company as part of the Services.
2. Services
2.1 The Customer engages the Company and the Company agrees to provide the Services to the Customer for the Term in accordance with the terms of this Agreement.
2.2 The Services shall be made available to Customers via the Internet during any calendar month at least 95% on Business Days during Business Hours in accordance with the terms of this Agreement (together with any Operating Rules).
2.3 If the Customer wishes to purchase additional Services after the Effective Date, such Services shall be agreed by both parties and incorporated into this Agreement.
3. Licences
3.1 The Customer is granted a non-exclusive and non-transferable licence to use, and to permit Authorised Users to use, the Services (including any associated software, Intellectual Property Rights and Confidential Information of the Company) during the Term. Such licence permits the Customer to make such caches of software or other information as are required for the Customer to receive the Services. Where open source software is used as part of the Services, such software use by the Customer will be subject to the terms of applicable open source licences.
3.2 All Intellectual Property Rights and title to the Services (save to the extent incorporating any Customer or third party owned item) shall remain with the Company and/or its licensors and no interest or ownership in the Services, the Intellectual Property Rights or otherwise is conveyed to the Customer under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
3.3 Disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited. To the extent that the Customer is granted the right by law to decompile such software in order to obtain information necessary to render the Services interoperable with other software (and upon written request by the Customer identifying relevant details of the Services(s) with which interoperability is sought and the nature of the information needed), the Company will provide access to relevant source code or information. The Company has the right to impose reasonable conditions including but not limited to the imposition of a reasonable fee for providing such access and information.
3.4 Unless otherwise specified in this Agreement, the Services are provided and may be used solely by the Customer and its Authorised Users as part of the Customer’s website/desktop architecture. The Customer and Authorised Users may not: (i) lease, loan, resell or otherwise distribute the Services save as permitted in writing by the Company; (ii) use the Services to provide ancillary services related to the Services; or (iii) except as permitted in this Agreement, permit access to or use of the Services by or on behalf of any third party.
3.5 The Company may take and maintain technical precautions to protect the Services from improper or unauthorised use, distribution or copying.
3.6 The Customer grants the Company a non-exclusive, royalty free, transferable licence to use Customer Data for the Term for the purposes of providing the Services.
3.7 The Customer grants the Company a non-exclusive, non-transferable, revocable licence to display the Customer’s name, logo and trademarks, as designated and/or amended by the Customer from time to time and as required in the creation of correspondence, documentation and website front ends in the provision of the Services.
3.8 The Customer assigns all rights, title and interest in any Feedback to the Company. If for any reason such assignment is ineffective, the Customer shall grant the Company a non-exclusive, perpetual, irrevocable, royalty free, worldwide right and licence to use, reproduce, disclose, sub-licence, distribute, modify and exploit such Feedback without restriction.
4. Fees, Invoicing and Payment
4.1 The Services shall be provided free of charge during the Free Trial Period.
4.2 From the Effective Date, the Company shall charge/invoice the Customer the Fees set out in on bsafer Website or as per written agreement.
4.3 The Fee is the price in force on the date each charge/invoice is issued and is dependent upon storage space, transfer usage and number of users as set out in the getbSafer Website or written agreement between Company and Customer. If the Customer approaches the storage space, transfer usage or user number limits permitted for the Fee invoiced at any time during the Initial Term or a Renewal Term the Customer shall be invited to upgrade to a suitable subscription. Once limits have been reached, no data storage, transfer or additional users will be permitted until storage is freed up or subscription is upgraded.
4.4 No Fees will be refunded for any unused storage space or bandwidth.
4.5 Upon expiry of the Initial Term, the Fee can be downgraded provided that the Customer gives the Company at least 30 days notice of any downgrade, prior to the next Renewal Term beginning.
4.6 No Fees will be refunded for downgrading or cancellation of subscriptions but credits can be issued for the next Renewal Term.
4.7 All Fees are exclusive of VAT.
4.8 The Company is entitled to refuse any order placed by a Customer. If an order is accepted, access to the Service will be enabled.
4.9 All invoices shall be issued in the currency stated in the agreement between Company and Customer and shall be payable in full by the Customer together with any Value Added Tax (if applicable) in the invoiced currency.
4.10 Unless agreed otherwise by Company and Customer, all Fees are payable monthly or annually (as selected by Customer) in advance by credit card using Stripe at the time of order.
4.11 Where payment of any Fee is not received by the due payment date, the Company may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and the Company shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remains unpaid. [r4]
4.12 The Company shall be entitled to: (i) charge interest on overdue Fees at the applicable statutory rate and (ii) recover any costs and reasonable legal fees it incurs in recovering overdue payments.
4.13 The Customer undertakes that all details provided for the purpose of obtaining the Services will be correct and that the credit card details used are its own and that there are sufficient funds or credit facilities to cover the Fees.
5. Warranties
5.1 Each party warrants and represents that: (i) it has full corporate power and authority to enter into this Agreement and to perform the obligations required hereunder; (ii) the execution and performance of its obligations under this Agreement does not violate or conflict with the terms of any other agreement to which it is a party.
5.2 The Company warrants and represents that: (i) it has the right to license the Services; (ii) the Services shall be performed with reasonable skill and care, in a professional manner and in accordance with good industry practice; (ii) in performing the Services it will not infringe the rights of any third party (including but not limited to Intellectual Property Rights in any jurisdiction) or be in breach of any obligations it may have to a third party; and (iii) it is not prohibited from providing the Services by any statutory or other rules or regulations in any relevant jurisdiction. The foregoing warranties shall not: (a) cover deficiencies or damages relating to any third party components not provided by the Company; or (b) any third party provided connectivity necessary for the provision or use of the Services. In the event of a breach of the warranties under this section 5.1, the Company shall have no liability or obligations to the Customer other than to reimburse the applicable Fee for the affected part of the Services.
5.3 The Customer warrants and represents that: (i) it rightfully owns the necessary user rights, copyrights and ancillary copyrights and permits required for it to fulfil its obligations under this Agreement; (ii) it and Authorised Users shall maintain reasonable security measures (as may change over time) covering, without limitation, confidentiality, authenticity and integrity to ensure that the access to the Services granted under this Agreement is limited as set out under this Agreement; (iii) it shall respect all applicable laws and regulations, governmental orders and court orders, which relate to this Agreement; (iv) it shall ensure that its network and systems comply with the relevant specification provided by the Company from time to time and that it is solely responsible for procuring and maintaining its network connections and telecommunications links from the Customer’s systems to the Company’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).
5.4 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law.
5.5 No warranty is made: (i) regarding the results of usage of the Services; (ii) that the functionality of the Services will meet the requirements of the Customer; (iii) that the Services will operate uninterrupted or error free; or (iv) regarding the Customers compliance with any applicable regulations, laws, codes of conduct, safety or compliance matters applicable to the Customer and the operation of the Customer’s business, now or in the future. This section shall survive the termination of this Agreement.
5.6 The Customer acknowledges that Services should not be used for high risk applications where precise locations or features on maps are essential to the Customer, for example use of the Services by the emergency services.
6 Liability
6.1 Neither party excludes or limits its liability to the other for fraud, death or personal injury caused by any negligent act or omission or wilful misconduct in connection with the use or provision of the Services.
6.2 In no event shall the Company be liable to the Customer for any Consequential Loss whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising.
6.3 Subject to sections 6.1 and 6.2, the total liability of the Company (whether in contract, tort or otherwise) under or in connection with this Agreement or based on any claim for indemnity or contribution shall not exceed one hundred (100) per cent of the total Fees (excluding any VAT, duty, sales or similar taxes) paid or payable by the Customer to the Company during the preceding twelve (12) month period or, if the duration of the Agreement has been less than twelve (12) months, such shorter period, as applicable.
6.4 In no event shall the Customer raise any claim under this Agreement more than one (1) year after: (i) the discovery of the circumstances giving rise to such claim; or (ii) the effective date of termination of this Agreement. This section shall survive the termination of this Agreement.
6.5 The Company shall have no liability whatsoever for any claim relating to the Customer’s failure to comply with any law, regulations, guideline, code, including but not limited to health and safety or accident prevention which the Customer is obliged to comply with.
6.6 The Company shall have no liability whatsoever for any claim relating to use of the Services in breach of clause 5.6.
6.7 The Company shall have no liability whatsoever for Customers quality, safety or risk performance.
6.8 The Company shall have no liability whatsoever for Customers performance (including accidents, incidents etc) or loss due to software downtime or unavailability.
6.9 The Customer acknowledges and agrees that in entering into this Agreement, the Customer had recourse to its own skill and judgement and has not relied on any representations made by the Company, any employees or agents of the Company.
7 Indemnities
7.1 The Company, at its own expense, shall: (i) defend, or at its option, settle any claim or suit brought against the Customer by a third party on the basis of infringement of any Intellectual Property Rights by the Services (excluding any claim or suit deriving from any Customer or Authorised User provided item); and (ii) pay any final judgement entered against the Customer on such issue or any settlement thereof, provided that: (a) the Customer notifies the Company promptly of each such claim or suit; (b) the Company is given sole control of the defence and/or settlement; and the (c) Customer fully co-operates and provides all reasonable assistance to the Company in the defence or settlement.
7.2 If all or any part of the Services becomes, or in the opinion of the Company may become, the subject of a claim or suit of infringement, the Company at its own expense and sole discretion may: (i) procure for the Customer the right to continue to use the Services or the affected part thereof; or (ii) replace the Services or affected part with other suitable non-infringing service(s); or (iii) modify the Services or affected part to make the same non-infringing.
7.3 The Company shall have no obligations under this section 7 to the extent that a claim is based on: (i) the combination, operation or use of the Services with other services or software not provided by the Company, if such infringement would have been avoided in the absence of such combination, operation or use; or (ii) use of the Services in any manner inconsistent with this Agreement; or (iii) the negligence or wilful misconduct of the Customer or an Authorised User.
7.4 The Customer shall indemnify and hold the Company and its suppliers or agents harmless from and against any cost, losses, liabilities and expenses, including reasonable legal costs arising from any claim relating to or resulting directly or indirectly from: (i) any claimed infringement or violation by the Customer of any Intellectual Property Rights with respect to the Customer’s use of the Services outside the scope of this Agreement; (ii) any access to or use of the Services by an Authorised User or third party; and (iii) use by the Company of any Customer or Authorised User provided item; (iv) breaches of data protection law or regulations resulting from the Company processing data on behalf of and in accordance with the instructions of the Customer; or (v) any breach of this Agreement by an Authorised User.
8 Term and Termination
8.1 This Agreement will begin on the Commencement for the duration of the Trial Period / Initial Term. Upon expiry of the Initial Term the Agreement shall automatically renew for further Renewal Terms until a party terminates early in accordance with its rights set out below in this section 8.
8.2 You may terminate your relationship with Company at any time and without recourse to the courts by requesting closure of your User Account, ceasing to use the Software, Products and/or bsafer Websites and cancelling any recurring payments.
8.3 The Company may immediately terminate this Agreement or the provision of any Services provided pursuant to this Agreement if: (i) the Customer or an Authorised User has used or permitted the use of the Services otherwise than in accordance with this Agreement; or (ii) the Company is prohibited, under the laws of England or otherwise, from providing the Services.
8.4 Company may terminate its relationship with you, or may terminate or suspend your use of the Software, User Account(s), Products or bsafer Websites at any time and without recourse to the courts:
(a) if you are in breach of these Terms;
(b) if Company reasonably suspects that you are using the Software, the Products and/or bSafer Websites to break the law or infringe third party rights;
(c) if Company reasonably suspects that you are trying to unfairly exploit any of our policies.
(d) if Company reasonably suspects that you are using our Products, Software and/or bsafer Websites fraudulently or that your User Account is being used by a third party fraudulently;
(f) in respect of a particular Product, on thirty (30) days notice if Company decides to cease offering that Product;
(g) immediately, if (in Company´s reasonable discretion) required due to a change in or adverse interpretation of laws/regulation or where required by a regulator or authority with a lawful mandate;
(h) on thirty (30) days notice if Company decides to cease offering the Software to users in your jurisdiction generally
8.5 Upon termination of this Agreement: (i) the Company shall immediately prevent access to your User Account and cease providing the Services to the Customer and all licences granted hereunder shall terminate; and (ii) the Customer shall promptly pay the Company all unpaid Fees for the remainder of the Term. No Fees already paid shall be refunded if the Agreement is terminated prior to the end of the Term.
8.6 Termination of this Agreement for whatever reason shall not affect the accrued rights of the parties. All clauses which by their nature should continue after termination shall, for the avoidance of doubt, survive the expiration or sooner termination of this Agreement and shall remain in force and effect.
9. Confidential Information
9.1 Each party may use the Confidential Information of a disclosing party only for the purposes of this Agreement and must keep confidential all Confidential Information of each disclosing party except to the extent (if any) the recipient of any Confidential Information is required by law to disclose the Confidential Information.
9.2 Either party may disclose the Confidential Information of the other party to those of its employees and agents who have a need to know the Confidential Information for the purposes of this Agreement but only if the employee or agent executes a confidentiality undertaking in a form approved by the other party.
9.3 Both parties agree to return (or destroy) all documents and other materials containing Confidential Information without delay upon completion of the Services or termination or expiry of this Agreement.
9.4 The obligations of confidentiality under this Agreement do not extend to information that: (i) was rightfully in the possession of the receiving party before the negotiations leading to this Agreement; (ii) is, or after the day this Agreement is signed, becomes public knowledge (otherwise than as a result of a breach of this Agreement); or (iii) is required by law to be disclosed.
10. Data Protection and Customer Data
10.1 Each party undertakes to comply with its obligations under relevant applicable data protection laws, principles and agreements.
10.2 To the extent that personal data is processed using the Services, the parties acknowledge that the Company is a data processor and the Customer is a data controller and the parties shall comply with their respective statutory data protection obligations. The Company agrees that it will only process personal data on behalf of, and in the name of, the Customer.
10.3 The Customer shall ensure that the personal data, which it supplies or discloses to the Company, has been obtained fairly and lawfully and that it will obtain all necessary approvals from persons whose data is being processed and registrations with authorities to permit the Company to transfer personal data to third parties pursuant to its obligations under this Agreement.
10.4 The Company confirms that it: (i) merely acts as a data processor; (ii) will only process data in accordance with the instructions of the data controller; and (iii) has taken, as well as its subcontractors, licensors and hosts, sufficient and 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, having regard to the state of technological development and cost of implementing any measures, to ensure a level of security appropriate to the harm that might result from such unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the personal data to be protected.
10.5 If a third party alleges infringement of its data protection rights, the Company shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
10.6 Any information that the Customer provides to the Company including Customer Data uploaded to the Company servers, information provided during registration or information provided when ordering or using the Services (such as the Customer’s email address) will be used by the Company in accordance with the terms of this Agreement and the Privacy Policy. The Customer grants the Company the right to modify, copy or save such data as part of processing it for use with the Services.
10.7 The Customer shall retain sole ownership of all rights, title and interest in and to Customer Data and its pre-existing Intellectual Property Rights and shall have the sole responsibility for the legality, reliability, integrity, accuracy and quality of the Customer Data.
10.8 Customers are responsible for keeping copies of Customer Data used and stored on the Company’s servers. Customers are responsible for removing all Customer Data from the Services prior to the termination or expiry of this Agreement. Notwithstanding the aforesaid, the Company reserves the right to remove all Customer Data six months after the expiry or termination of this Agreement without giving the Customer any prior notice of such deletion.
11. Security
11.1 The Company shall permit the Customer to specify which Authorised Users may access the Services through its standard application security options.
11.2 The Customer and Authorised Users must ensure that each password is only used by the user to which it has been assigned. The Customer is responsible for any and all activities that occur under the Customer’s account and via the Customer’s passwords. The Customer will immediately notify the Company if the Customer becomes aware of any unauthorised use of the Customer’s account, the Customer’s passwords or breach of security known to the Customer. The Company shall have no liability for any loss or damage arising from the Customer’s failure to comply with these requirements.
11.3 The Company may suspend access to the Services, or portion thereof, at any time, if in the Company’s sole reasonable discretion, the integrity or security of the Services is in danger of being compromised by acts of the Customer or Authorised Users.
12. Third Parties
Nothing contained in this Agreement or in any instrument or document executed by any party in connection with the provision of the Services is intended to be enforceable by a third party under the Contracts (Rights of Third Parties) Act 1999, or any similar legislation in any applicable jurisdiction.
13. Force Majeure
13.1 If a party is wholly or partially prevented by Force Majeure from complying with its obligations under this Agreement, then that party’s obligation to perform in accordance with this Agreement will be suspended.
13.2 As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement. If the Force Majeure event last for more than 28 days the non-defaulting party may terminate this Agreement with immediate effect without penalty.
14. Miscellaneous
14.1 Should a provision of this Agreement be invalid or become invalid then the legal effect of the other provisions shall be unaffected. A valid provision is deemed to have been agreed which comes closest to what the parties intended commercially and shall replace the invalid provision. The same shall apply to any omissions.
14.2 This Agreement constitutes the whole agreement and understanding between the parties and supersedes all prior agreements, representations, negotiations and discussions between the parties relating to the subject matter thereof.
14.3 No party may assign its rights under this Agreement without the prior written consent of the other party, such consent shall not be unreasonably withheld, however the Company shall be entitled to assign the Agreement to: (i) any company in the Company’s group of companies; or (ii) any entity that purchases the shares or assets of the Company as the result of a merger, takeover or similar event.
14.4 The Company and the Customer are independent contractors and nothing in this Agreement will be construed as creating an employer-employee relationship.
14.5 Company may make changes to these Terms from time to time. Company will publish the changes at www.getbsafer.com. The changes will be effective when published. Please review the Terms on a regular basis. You understand and agree that your express acceptance of the Terms or your use of the Software, Products and/or bSafer Websites after the date of publication shall constitute your agreement to the updated Terms. If you do not agree with the amended Terms, you may terminate your relationship with Company and / or bSafer in accordance with section 8.
14.6 This Agreement shall be governed by the laws of England and Wales. The courts of England shall have exclusive jurisdiction for the settlement of all disputes arising under this Agreement.