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Services Agreement

Introduction

Our Services Agreement is the contract that governs our relationship with our customers. It consists of the following documents:

Agreement Details: This is the order form that details your services. It contains all the details about your purchase, including your subscription term, services and software purchased and your fees. This is the form that you sign which is supported by the terms detailed below. You will have been sent this separately via Adobe DocuSign®.

General Terms: These contain the core legal and commercial terms that apply to your use of our products and services.

Schedule 1 – Consulting: These are the terms which relate to the use of our consulting services.

Schedule 2 – SaaS: These are the terms which relate to the use of the software.

Schedule 3 – Data Processing Clauses: This explains how we process your data.

We’ve tried to keep these documents as readable as possible, but in some cases some of the language is necessarily “legalese”.

We update these terms from time to time. If you have an active SML service, we will let you know when we update the terms by email (if you subscribe to receive email updates).

Safety Management Limited – General Terms

  1. Interpretation

    1. The definitions and rules of interpretation in this clause apply in this agreement.
      Agreement Details: the agreement details signed by both parties.
      Authorised Users: those employees, agents and independent contractors of the Customer who are authorised by the Customer to use the SaaS Services and the Documentation.
      Business Day: a day other than a Saturday, Sunday or public holiday in England when banks in London are open for business.
      Charges: the subscription fees payable by the Customer to SML for the Saas Services as set out in the Agreement Details.
      Confidential Information: information that is proprietary or confidential and is either clearly labelled as such or identified as Confidential Information in clause 4.1.
      Consultancy Services: has the meaning given in the Agreement Details.
      Customer: the customer named in the Agreement Details.
      Customer Data: the data inputted by the Customer, Authorised Users, or SML on the Customer’s behalf for the purpose of using the SaaS Services or facilitating the Customer’s use of the SaaS Services.
      Customer Materials: all documents, information, items and materials in any form, whether owned by the Customer or a third party, which are provided by the Customer to SML in connection with the Consultancy Services.
      Documentation: the document made available to the Customer by SML online via the Platform which sets out a description of the SaaS Services and the user instructions for the SaaS Services.
      Effective Date: the date specified in the Agreement Details.
      Initial Subscription Term: the initial term of this agreement as set out in the Agreement Details.
      Normal Business Hours: 8.00 am to 6.00 pm local UK time, each Business Day.
      Platform: SML’s platform at https://portal.safety-management.co.uk/login or any other website notified to the Customer by SML from time to time.
      SaaS Services: has the meaning given in the Agreement Details.
      Services: the SaaS Services and/or the Consultancy Services as applicable.
      SML: Safety Management Limited (company registration number 02374369).
      Software: the online software applications provided by SML as part of the SaaS Services.
      Subscription Term: the term of this agreement.
      Support Services Policy: SML’s policy for providing support in relation to the SaaS Services as made available on the Platform.
      Virus: any thing or device (including any software, code, file or programme) which may: prevent, impair or otherwise adversely affect the operation of any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any programme or data, including the reliability of any programme or data (whether by re-arranging, altering or erasing the programme or data in whole or part or otherwise); or adversely affect the user experience, including worms, trojan horses, viruses and other similar things or devices.
      Vulnerability: a weakness in the computational logic (for example, code) found in software and hardware components that when exploited, results in a negative impact to the confidentiality, integrity, or availability, and the term Vulnerabilities shall be interpreted accordingly.
    2. Clause headings shall not affect the interpretation of this agreement.
    3. A person includes an individual, corporate or unincorporated body (whether or not having separate legal personality).
    4. A reference to a company shall include any company, corporation or other body corporate, wherever and however incorporated or established.
    5. Unless the context otherwise requires, words in the singular shall include the plural and in the plural shall include the singular.
    6. Unless the context otherwise requires, a reference to one gender shall include a reference to the other genders.
    7. A reference to a statute or statutory provision is a reference to it as it is in force as at the date of this agreement.
    8. A reference to a statute or statutory provision shall include all subordinate legislation made as at the date of this agreement under that statute or statutory provision.
    9. A reference to writing or written excludes fax but not email.
    10. References to clauses are to the clauses of this agreement.

  2. Charges and payment

    1. The Customer shall pay the Charges to SML in accordance with the Payment Terms.
    2. If SML has not received payment by the due date, and without prejudice to any other rights and remedies of SML:
      1. SML may, without liability to the Customer, disable the Customer’s password, account and access to all or part of the Services and SML shall be under no obligation to provide any or all of the Services while the invoice(s) concerned remain unpaid; and
      2. interest shall accrue on a daily basis on such due amounts at an annual rate equal to 4% over the then current base lending rate of SML’s bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
    3. All amounts and fees stated or referred to in this agreement
      1. shall be payable in pounds sterling;
      2. are, subject to clause 7.3(b), non-cancellable and non-refundable;
      3. are exclusive of value added tax, which shall be added to SML’s invoice(s) at the appropriate rate.
    4. SML shall be entitled to increase the Charges with effect on each anniversary of the Effective Date by 3.5% and the Agreement Details shall be deemed to have been amended accordingly.
    5. All amounts due under this agreement shall be paid in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding required by law).

  3. Proprietary rights

    1. The Customer acknowledges and agrees that SML and/or its licensors own all intellectual property rights in the Software, Services and the Documentation. Except as expressly stated herein, this agreement does not grant the Customer any rights to, under or in, any patents, copyright, database right, trade secrets, trade names, trade marks (whether registered or unregistered), or any other rights or licences in respect of the Software, Services or the Documentation.
    2. SML grants to the Customer (or shall procure the grant to the Customer) of a non-exclusive, royalty-free, non-transferable licence to use and copy such intellectual property rights as are necessary to the receipt and use of the Consultancy Services and the Deliverables by the Customer for the purposes contemplated by the parties.
    3. The Customer grants to SML a non-exclusive, royalty-free, non-transferable licence to copy and modify the Customer Materials for the purpose of providing the Consultancy Services to the Customer in accordance with this agreement.
    4. SML confirms that it has all the rights in relation to the Services and the Documentation that are necessary to grant all the rights it purports to grant under, and in accordance with, the terms of this agreement.

  4. Confidentiality

    1. Confidential Information means all confidential information (however recorded or preserved) disclosed by a party or its Representatives (as defined below) to the other party and that party’s Representatives whether before or after the date of this agreement in connection with this agreement, including but not limited to:
      1. any information that would be regarded as confidential by a reasonable business person relating to:
        1. the business, assets, affairs, customers, clients, suppliers, or plans, intentions, or market opportunities of the disclosing party; and
        2. the operations, processes, product information, know-how, designs, trade secrets or software of the disclosing party;
      2. any information developed by the parties in the course of carrying out this agreement and the parties agree that:
        1. details of the Services, and the results of any performance tests of the Services, shall constitute SML’s Confidential Information; and
        2. Customer Data shall constitute Customer Confidential Information.

      Representatives means, in relation to a party, its employees, officers, contractors, subcontractors, representatives and advisers.

    2. The provisions of this clause shall not apply to any Confidential Information that:
      1. is or becomes generally available to the public (other than as a result of its disclosure by the receiving party or its Representatives in breach of this clause);
      2. was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
      3. was, is or becomes available to the receiving party on a non-confidential basis from a person who, to the receiving party’s knowledge, is not bound by a confidentiality agreement with the disclosing party or otherwise prohibited from disclosing the information to the receiving party; or
      4. the parties agree in writing is not confidential or may be disclosed.
    3. Each party shall keep the other party’s Confidential Information secret and confidential and shall not:
      1. use such Confidential Information except for the purpose of exercising or performing its rights and obligations under or in connection with this agreement (Permitted Purpose); or
      2. disclose such Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 4.
    4. A party may disclose the other party’s Confidential Information to those of its Representatives who need to know such Confidential Information for the Permitted Purpose, provided that:
      1. it informs such Representatives of the confidential nature of the Confidential Information before disclosure; and
      2. at all times, it is responsible for such Representatives’ compliance with the confidentiality obligations set out in this clause.
    5. A party may disclose Confidential Information to the extent such Confidential Information is required to be disclosed by law, by any governmental or other regulatory authority or by a court or other authority of competent jurisdiction provided that, to the extent it is legally permitted to do so, it gives the other party as much notice of such disclosure as possible.
    6. No party shall make, or permit any person to make, any public announcement concerning this agreement without the prior written consent of the other parties (such consent not to be unreasonably withheld or delayed), except as required by law, any governmental or regulatory authority (including, without limitation, any relevant securities exchange), any court or other authority of competent jurisdiction.
    7. The above provisions of this clause 4 shall continue to apply after termination of this agreement.

  5. Data protection

    1. Each party will comply with all applicable requirements of the Data Protection Legislation. This clause 5 is in addition to, and does not relieve, remove or replace, either party’s obligations under the Data Protection Legislation
    2. Without prejudice to the generality of clause 5.1, where SML processes the Customer Personal Data on behalf of the Customer, it will do so in accordance with the processing clauses in Schedule 3.

  6. Indemnity

    1. Without prejudice to SML’s obligations under this agreement, the Customer shall defend, indemnify and hold harmless SML against claims, actions, proceedings, losses, damages, expenses and costs (including without limitation court costs and reasonable legal fees) arising out of or in connection with the Customer’s use of the SaaS Services and/or Documentation, provided that:
      1. the Customer is given prompt notice of any such claim;
      2. SML provides reasonable co-operation to the Customer in the defence and settlement of such claim, at the Customer’s expense; and
      3. the Customer is given sole authority to defend or settle the claim.
    2. SML shall defend the Customer, its officers, directors and employees against any claim that the Customer’s use of the Software, Services or Documentation in accordance with this agreement infringes any United Kingdom patent effective as of the Effective Date, copyright, trade mark, database right or right of confidentiality, and shall indemnify the Customer for any amounts awarded against the Customer in judgment or settlement of such claims, provided that:
      1. SML is given prompt notice of any such claim;
      2. the Customer does not make any admission, or otherwise attempt to compromise or settle the claim and provides reasonable co-operation to SML in the defence and settlement of such claim, at SML’s expense; and
      3. SML is given sole authority to defend or settle the claim.
    3. In the defence or settlement of any claim, SML may procure the right for the Customer to continue using the Services, replace or modify the Services so that they become non-infringing or, if such remedies are not reasonably available, terminate this agreement on 2 Business Days’ notice to the Customer without any additional liability or obligation to pay liquidated damages or other additional costs to the Customer.
    4. In no event shall SML, its employees, agents and sub-contractors be liable to the Customer to the extent that the alleged infringement is based on:
      1. a modification of the Software, Services or Documentation by anyone other than SML; or
      2. the Customer’s use of the Software, Services or Documentation in a manner contrary to the instructions given to the Customer by SML; or
      3. the Customer’s use of the Software, Services or Documentation after notice of the alleged or actual infringement from SML or any appropriate authority.
    5. 6.5 The foregoing and clause 7.3(b) state the Customer’s sole and exclusive rights and remedies, and SML’s (including SML’s employees’, agents’ and sub-contractors’) entire obligations and liability, for infringement of any patent, copyright, trade mark, database right or right of confidentiality.

  7. Limitation of liability

    1. Except as expressly and specifically provided in this agreement:
      1. the Customer assumes sole responsibility for results obtained from the use of the SaaS Services and the Documentation by the Customer, and for conclusions drawn from such use. SML shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to SML by the Customer in connection with the SaaS Services, or any actions taken by SML at the Customer’s direction;
      2. all warranties, representations, conditions and all other terms of any kind whatsoever implied by statute or common law are, to the fullest extent permitted by applicable law, excluded from this agreement;
      3. the Consultancy Services shall be provided with reasonable care and skill; and
      4. the SaaS Services and the Documentation are provided to the Customer on an “as is” basis.
    2. Nothing in this agreement excludes the liability of SML:
      1. for death or personal injury caused by SML’s negligence; or
      2. for fraud or fraudulent misrepresentation.
    3. Subject to clause 7.1 and clause 7.2:
      1. SML shall not be liable whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation, restitution or otherwise for any loss of profits, loss of business, depletion of goodwill and/or similar losses or loss or corruption of data or information, or pure economic loss, or for any special, indirect or consequential loss, costs, damages, charges or expenses however arising under this agreement; and
      2. SML’s total aggregate liability in contract (including in respect of the indemnity at clause 6.2), tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of this agreement shall be limited twice the total Charges paid for the Services during the 12 months immediately preceding the date on which the claim arose.

  8. Term and termination

    1. This Agreement shall remain in effect for the Initial Subscription Term.
    2. This Agreement shall be automatically renewed for successive annual terms unless either party gives the other party no less than three months notice to terminate at the end of the initial period or any subsequent annual period.
    3. Without affecting any other right or remedy available to it, either party may terminate this agreement with immediate effect by giving written notice to the other party if:
      1. the other party fails to pay any amount due under this agreement on the due date for payment and remains in default not less than 15 days after being notified in writing to make such payment;
      2. the other party commits a material breach of any other term of this agreement and (if such breach is remediable) fails to remedy that breach within a period of 30 days after being notified in writing to do so;
      3. the other party suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986 (IA 1986) as if the words “it is proved to the satisfaction of the court” did not appear in sections 123(1)(e) or 123(2) of the IA 1986;
      4. the other party commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      5. the other party applies to court for, or obtains, a moratorium under Part A1 of the Insolvency Act 1986;
      6. a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of that other party other than for the sole purpose of a scheme for a solvent amalgamation of that other party with one or more other companies or the solvent reconstruction of that other party;
      7. an application is made to court, or an order is made, for the appointment of an administrator, or if a notice of intention to appoint an administrator is given or if an administrator is appointed, over the other party (being a company, partnership or limited liability partnership);
      8. the holder of a qualifying floating charge over the assets of that other party (being a company or limited liability partnership) has become entitled to appoint or has appointed an administrative receiver;
      9. a person becomes entitled to appoint a receiver over the assets of the other party or a receiver is appointed over the assets of the other party;
      10. a creditor or encumbrancer of the other party attaches or takes possession of, or a distress, execution, sequestration or other such process is levied or enforced on or sued against, the whole or any part of the other party’s assets and such attachment or process is not discharged within 14 days;
      11. any event occurs, or proceeding is taken, with respect to the other party in any jurisdiction to which it is subject that has an effect equivalent or similar to any of the events mentioned in clause 8.2(c) to 8.2(j) (inclusive);
      12. the other party suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
      13. the other party’s financial position deteriorates so far as to reasonably justify the opinion that its ability to give effect to the terms of this agreement is in jeopardy; or
      14. there is a change of control of the other party (within the meaning of section 1124 of the Corporation Tax Act 2010).
    4. On termination of this agreement for any reason:
      1. all licences granted under this agreement shall immediately terminate and the Customer shall immediately cease all use of the SaaS Services and/or the Documentation;
      2. each party shall return and make no further use of any equipment, property, Documentation and other items (and all copies of them) belonging to the other party;
      3. SML may destroy or otherwise dispose of any of the Customer Data in its possession unless SML receives, no later than ten days after the Effective Date of the termination of this agreement, a written request for the delivery to the Customer of the then most recent back-up of the Customer Data. SML shall use reasonable commercial endeavours to deliver the back-up to the Customer within 30 days of its receipt of such a written request, provided that the Customer has, at that time, paid all fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by SML in returning or disposing of Customer Data; and
      4. any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination shall not be affected or prejudiced.

  9. Force majeure

    Neither party shall be in breach of this agreement nor liable for delay in performing, or failure to perform, any of its obligations under this agreement if such delay or failure result from events, circumstances or causes beyond its reasonable control.

  10. Variation

    No variation of this agreement shall be effective unless it is in writing and signed by the parties (or their authorised representatives).

  11. Waiver

    1. A waiver of any right or remedy is only effective if given in writing and shall not be deemed a waiver of any subsequent right or remedy.
    2. A delay or failure to exercise, or the single or partial exercise of, any right or remedy shall not waive that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy.

  12. Rights and remedies

    Except as expressly provided in this agreement, the rights and remedies provided under this agreement are in addition to, and not exclusive of, any rights or remedies provided by law.

  13. Severance

    If any provision or part-provision of this agreement is or becomes invalid, illegal or unenforceable, it shall be deemed deleted, but that shall not affect the validity and enforceability of the rest of this agreement.

  14. Entire agreement

    1. This agreement constitutes the entire agreement between the parties and supersedes and extinguishes all previous and contemporaneous agreements, promises, assurances and understandings between them, whether written or oral, relating to its subject matter.
    2. Each party acknowledges that in entering into this agreement it does not rely on, and shall have no remedies in respect of, any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in this agreement.
    3. Each party agrees that it shall have no claim for innocent or negligent misrepresentation or negligent misstatement based on any statement in this agreement.
    4. Nothing in this clause shall limit or exclude any liability for fraud.

  15. Assignment

    1. The Customer shall not, without the prior written consent of SML, assign, novate, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.
    2. SML may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this agreement.

  16. No partnership or agency

    Nothing in this agreement is intended to or shall operate to create a partnership between the parties, or authorise either party to act as agent for the other, and neither party shall have the authority to act in the name or on behalf of or otherwise to bind the other in any way (including, but not limited to, the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).

  17. Third party rights

    This agreement does not confer any rights on any person or party (other than the parties to this agreement and, where applicable, their successors and permitted assigns) pursuant to the Contracts (Rights of Third Parties) Act 1999.

  18. Counterparts

    This agreement may be executed in any number of counterparts, each of which shall constitute a duplicate original, but all the counterparts shall together constitute the one agreement.

  19. Notices

    1. Any notice given to a party under or in connection with this agreement shall be in writing and shall be sent by email to office@safety-management.co.uk (or an address substituted in writing by the party to be served).
    2. Any notice shall be deemed to have been received if sent by email, at the time of transmission, or, if this time falls outside business hours in the place of receipt, when business hours resume.
    3. This clause does not apply to the service of any proceedings or other documents in any legal action or, where applicable, any arbitration or other method of dispute resolution.

  20. Governing law

    This agreement and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) shall be governed by and interpreted in accordance with the law of England and Wales.

  21. Jurisdiction

    Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with this agreement or its subject matter or formation (including non-contractual disputes or claims) provided that either party may enforce any judgment of the courts of England and Wales in the courts of any jurisdiction.

Schedule 1

Safety Management Limited – Terms and Conditions applying to Consultancy Services

  1. Interpretation

    The definitions and rules of interpretation in the General Terms apply in these terms.

  2. Supply of Consultancy Services

    1. We shall supply the Consultancy Services to you on the Consultancy Services Date(s) in accordance with these terms.
    2. In supplying the Consultancy Services, SML shall:
      1. perform the Consultancy Services with reasonable care and skill;
      2. use reasonable endeavours to perform the Consultancy Services in accordance with the service description set out in the Agreement Details;
      3. comply with all applicable laws, statutes, regulations and codes from time to time in force provided that SML shall not be liable under these terms if, as a result of such compliance, SML is in breach of any obligation under these terms;
      4. observe all reasonable health and safety rules and regulations and security requirements that apply at any of the Customer’s premises and which have been communicated to SML, provided that SML shall not be liable under these terms if, as a result of such observation, it is in breach of any of its obligations under these terms; and
      5. take reasonable care of all Customer Materials in SML’s possession and make them available for collection by the Customer on reasonable notice and request, always provided that SML may destroy Customer Materials if the Customer does not collect them within a reasonable period after termination of these terms.

  3. Customer obligations

    1. The Customer undertakes to:
      1. co-operate with SML in all matters relating to the Consultancy Services and these terms;
      2. provide, without delay, access to the Customer’s premises, office accommodation, employees and other facilities (including for the purpose of taking samples or carrying out monitoring) as reasonably required by SML for the purpose of providing the Consultancy Services;
      3. provide, in a timely manner, such Customer Materials as SML may require, and the Customer warrants that the Customer Materials are complete and accurate in all material respects;
      4. inform SML of all health and safety rules and regulations and any other reasonable security requirements that apply at the Customer’s premises and ensure the safety of SML personnel whilst attending at the Customer’s premises; and
      5. protect any equipment of SML in the Customer’s possession from damage or loss and keep and maintain it in safe and good condition and not dispose of it other than in accordance with SML’s written instructions or authorisation. The Customer shall indemnify SML for against any costs, expenses and losses suffered or incurred by SML as a result of the Customer’s failure to comply with this clause.
    2. If SML is prevented or delayed from performing its obligations under these terms by the Customer for any reason (including if the Customer changes the Consultancy Services Date(s) for any reason) SML shall:
      1. not be liable for any direct or indirect costs, charges or losses incurred by the Customer arising from such prevention or delay;
      2. be entitled to payment of the applicable Charges despite any such prevention or delay; and
      3. be entitled to recover any additional costs, charges or losses SML incurs whether direct, indirect, foreseeable or avoidable arising from such prevention or delay, including equipment hire charges and accommodation cancellation fees.

Schedule 2

Safety Management Limited – Terms and Conditions applying to SaaS Services

  1. Interpretation

    The definitions and rules of interpretation in the General Terms apply in these terms.

  2. Access to the SaaS Services

    1. Subject to these terms and conditions, SML hereby grants to the Customer a non-exclusive, non-transferable right and licence, without the right to grant sublicences, to permit the Authorised Users to use the SaaS Services and the Documentation during the Subscription Term solely for the Customer’s internal business operations.
    2. In relation to the Authorised Users, the Customer undertakes that:
      1. each Authorised User shall keep a secure password for their use of the SaaS Services and Documentation and that each Authorised User shall keep their password confidential;
      2. it shall maintain a written, up to date list of current Authorised Users and provide such list to SML within 5 Business Days of SML’s written request at any time or times;
      3. it shall permit SML or SML’s designated auditor to audit the SaaS Services in order to establish the name and password of each Authorised User and the Customer’s data processing facilities to audit compliance with these terms. Each such audit may be conducted no more than once per quarter, at SML’s expense, and this right shall be exercised with reasonable prior notice, in such a manner as not to substantially interfere with the Customer’s normal conduct of business; and
      4. if any of the audits referred to in clause 23.2(c) reveal that any password has been provided to any individual who is not an Authorised User, then without prejudice to SML’s other rights, the Customer shall promptly disable such passwords and SML shall not issue any new passwords to any such individual.
    3. The Customer shall not access, store, distribute or transmit any Viruses, or any material during the course of its use of the SaaS Services that:
      1. is unlawful, harmful, threatening, defamatory, obscene, infringing, harassing or racially or ethnically offensive;
      2. facilitates illegal activity;
      3. depicts sexually explicit images;
      4. promotes unlawful violence;
      5. is discriminatory based on race, gender, colour, religious belief, sexual orientation, disability; or
      6. is otherwise illegal or causes damage or injury to any person or property;

      and SML reserves the right, without liability or prejudice to its other rights to the Customer, to disable the Customer’s access to any material that breaches the provisions of this clause.

    4. The Customer shall not:
      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:
        1. 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 Documentation (as applicable) in any form or media or by any means; or
        2. attempt to de-compile, reverse compile, disassemble, reverse engineer or otherwise reduce to human-perceivable form all or any part of the Software; or
      2. access all or any part of the SaaS Services and Documentation in order to build a product or service which competes with the SaaS Services and/or the Documentation; or
      3. use the SaaS Services and/or Documentation to provide SaaS Services to third parties; or
      4. subject to clause 15.1, license, sell, rent, lease, transfer, assign, distribute, display, disclose, or otherwise commercially exploit, or otherwise make the SaaS Services and/or Documentation available to any third party except the Authorised Users, or
      5. attempt to obtain, or assist third parties in obtaining, access to the SaaS Services and/or Documentation, other than as provided under this clause 23; or
      6. introduce or permit the introduction of, any Virus or Vulnerability into SML’s network and information systems.
    5. The Customer shall use all reasonable endeavours to prevent any unauthorised access to, or use of, the SaaS Services and/or the Documentation and, in the event of any such unauthorised access or use, promptly notify SML.
    6. The rights provided under this clause 23are granted to the Customer only, and shall not be considered granted to any subsidiary or holding company of the Customer.

  3. SaaS Services

    1. SML shall, during the Subscription Term, provide the SaaS Services and make available the Documentation to the Customer on and subject to these terms.
    2. SML shall use commercially reasonable endeavours to make the SaaS Services available 24 hours a day, seven days a week, except for:
      1. planned maintenance carried out during the maintenance window of 10.00 pm to 2.00 am UK time; and
      2. unscheduled maintenance performed outside Normal Business Hours, provided that SML has used reasonable endeavours to give the Customer at least 6 Normal Business Hours’ notice in advance.
    3. SML will, as part of the SaaS Services and at no additional cost to the Customer provide the Customer with SML’s standard customer support services during Normal Business Hours in accordance with SML’s Support Services Policy in effect at the time that the SaaS Services are provided. SML may amend the Support Services Policy in its sole and absolute discretion from time to time.

  4. SML’s obligations

    1. SML undertakes that the SaaS Services will be performed substantially in accordance with the Documentation and with reasonable skill and care.
    2. The undertaking at clause 26.1 shall not apply to the extent of any non-conformance which is caused by use of the SaaS Services contrary to SML’s instructions, or modification or alteration of the SaaS Services by any party other than SML or SML’s duly authorised contractors or agents. If the SaaS Services do not conform with the foregoing undertaking, SML will, at its expense, use all reasonable commercial endeavours to correct any such non-conformance promptly, or provide the Customer with an alternative means of accomplishing the desired performance. Such correction or substitution constitutes the Customer’s sole and exclusive remedy for any breach of the undertaking set out in clause 26.1.
    3. SML:
      1. does not warrant that:
        1. the Customer’s use of the SaaS Services will be uninterrupted or error-free; or
        2. that the SaaS Services, Documentation and/or the information obtained by the Customer through the SaaS Services will meet the Customer’s requirements; or
        3. the Software or the SaaS Services will be free from Vulnerabilities or Viruses.
      2. is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the SaaS Services and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities.
    4. These terms shall not prevent SML from entering into similar agreements with third parties, or from independently developing, using, selling or licensing documentation, products and/or SaaS Services which are similar to those provided under these terms.
    5. SML warrants that it has and will maintain all necessary licences, consents, and permissions necessary for the performance of its obligations under these terms.
    6. SML shall follow its standard archiving procedures for Customer Data from time to time. In the event of any loss or damage to Customer Data, the Customer’s sole and exclusive remedy against SML shall be for SML to use reasonable commercial endeavours to restore the lost or damaged Customer Data from the latest back-up of such Customer Data maintained by SML. SML shall not be responsible for any loss, destruction, alteration or disclosure of Customer Data caused by any third party (except those third parties sub-contracted by SML to perform SaaS Services related to Customer Data maintenance and back-up for which it shall remain fully liable.

  5. Customer’s obligations

    1. The Customer shall:
      1. provide SML with:
        1. all necessary co-operation in relation to these terms; and
        2. all necessary access to such information as may be required by SML,

        in order to provide the SaaS Services, including but not limited to Customer Data, security access information and configuration SaaS Services;

      2. without affecting its other obligations under these terms, comply with all applicable laws and regulations with respect to its activities under these terms;
      3. carry out all other Customer responsibilities set out in these terms in a timely and efficient manner. In the event of any delays in the Customer’s provision of such assistance as agreed by the parties, SML may adjust any agreed timetable or delivery schedule as reasonably necessary;
      4. ensure that the Authorised Users use the SaaS Services and the Documentation in accordance with the terms and conditions of these terms and shall be responsible for any Authorised User’s breach of these terms;
      5. obtain and shall maintain all necessary licences, consents, and permissions necessary for SML, its contractors and agents to perform their obligations under these terms, including without limitation the SaaS Services;
      6. ensure that its network and systems comply with the relevant specifications provided by SML from time to time; and
      7. be, to the extent permitted by law and except as otherwise expressly provided in these terms, solely responsible for procuring, maintaining and securing its network connections and telecommunications links from its systems to SML’s data centres, and all problems, conditions, delays, delivery failures and all other loss or damage arising from or relating to the Customer’s network connections or telecommunications links or caused by the internet.
    2. The Customer shall own all right, title and interest in and to all of the Customer Data that is not personal data and shall have sole responsibility for the legality, reliability, integrity, accuracy and quality of all such Customer Data.

Schedule 3

Safety Management Limited (SML) – Personal data processing terms

Date: 20th June 2022 Version 2.1

  1. DEFINITIONS

    The following terms shall have the meanings set against them:
    Controller, Processor, Data Subject, Personal Data, Personal Data Breach, processing and appropriate technical and organisational measures: as defined in the Data Protection Legislation.
    Customer Personal Data: the personal data described in the Agreement Details between the parties.
    Data Protection Legislation: all applicable data protection and privacy legislation in force from time to time in the UK including the UK GDPR; the Data Protection Act 2018 (DPA 2018) (and regulations made thereunder) and the Privacy and Electronic Communications Regulations 2003 (SI 2003/2426) as amended and all other legislation and regulatory requirements in force from time to time which apply to a party relating to the use of Personal Data (including, without limitation, the privacy of electronic communications).
    Domestic Law: the law of the United Kingdom or a part of the United Kingdom.
    UK GDPR: has the meaning given to it in section 3(10) (as supplemented by section 205(4)) of the Data Protection Act 2018.

  2. DATA PROTECTION

    1. Each party will comply with all applicable requirements of the Data Protection Legislation. The obligations in these terms are in addition to, and do not relieve, remove or replace, a party’s obligations or rights under the Data Protection Legislation.
    2. The parties acknowledge that for the purposes of the Data Protection Legislation, the Customer is the Controller and SML is the Processor of the Customer Personal Data.
    3. Without prejudice to the generality of clause 2.1, the Customer will ensure that it has all necessary appropriate consents and notices in place to enable lawful transfer of the Personal Data to SML and/or lawful collection of the Personal Data by SML on behalf of the Customer for the duration and purposes of this agreement.
    4. Without prejudice to the generality of clause 2.1, SML shall, in relation to any Personal Data processed in connection with the performance by SML of its obligations under this agreement:
      1. process that Personal Data only on the documented written instructions of the Customer unless SML is required by Domestic Law to otherwise process that Personal Data. Where SML is relying on Domestic Law as the basis for processing Personal Data, SML shall promptly notify the Customer of this before performing the processing required by the Domestic Law unless the Domestic Law prohibits SML from so notifying the Customer;
      2. ensure that it has in place appropriate technical and organisational measures, reviewed and approved by the Customer, to protect against unauthorised or unlawful processing of Personal Data and against accidental loss or destruction of, or damage to, Personal Data, appropriate to the harm that might result from the unauthorised or unlawful processing or accidental loss, destruction or damage and the nature of the data to be protected, having regard to the state of technological development and the cost of implementing any measures (those measures may include, where appropriate, pseudonymising and encrypting Personal Data, ensuring confidentiality, integrity, availability and resilience of its systems and services, ensuring that availability of and access to Personal Data can be restored in a timely manner after an incident, and regularly assessing and evaluating the effectiveness of the technical and organisational measures adopted by it);
      3. ensure that all personnel who have access to and/or process Personal Data are obliged to keep the Personal Data confidential; and
      4. not transfer any Personal Data outside the UK unless the prior written consent of the Customer has been obtained and the following conditions are fulfilled:
        1. the Customer or SML has provided appropriate safeguards in relation to the transfer;
        2. the data subject has enforceable rights and effective legal remedies;
        3. SML complies with its obligations under the Data Protection Legislation by providing an adequate level of protection to any Personal Data that is transferred; and
        4. SML complies with reasonable instructions notified to it in advance by the Customer with respect to the processing of the Personal Data;
      5. assist the Customer, at the Customer’s cost, in responding to any request from a Data Subject and in ensuring compliance with its obligations under the Data Protection Legislation with respect to security, breach notifications, impact assessments and consultations with supervisory authorities or regulators;
      6. notify the Customer without undue delay on becoming aware of a Personal Data Breach;
      7. at the written direction of the Customer, delete or return Personal Data and copies thereof to the Customer on termination of the agreement unless required by Domestic Law to store the Personal Data; and
      8. maintain complete and accurate records and information to demonstrate its compliance with these terms and allow for audits by the Customer or the Customer’s designated auditor and immediately inform the Customer if, in the opinion of SML, an instruction infringes the Data Protection Legislation.
    5. The Customer consents to SML appointing third-party processors of Personal Data under this agreement. SML confirms that it has entered or (as the case may be) will enter with the third-party processor into a written agreement substantially on that third party’s standard terms of business or incorporating terms which are substantially similar to those set out in these terms and in either case which SML confirms or undertakes reflect and will continue to reflect the requirements of the Data Protection Legislation. As between the Customer and SML, SML shall remain fully liable for all acts or omissions of any third-party processor appointed by it pursuant to these terms.