[DRAFT – SUBJECT TO CONTRACT – COMMERCIAL IN CONFIDENCE]
Dated 2016
BOMBRISK™ENTERPRISE
ACCESS AGREEMENT
DYNASAFE BACTEC LIMITED
and
[INSERT CLIENT NAME]
THIS AGREEMENT IS DATED 2016
BETWEEN:
(1)DYNASAFE BACTEC LIMITEDa company incorporated in England and Wales with company number02601923 and whose registered office is at 9 Waterside Court, Galleon Boulevard Crossways Business Park, Dartford, DA2 6NX (“BACTEC”); and
(2)[INSERT CLIENT NAME]a company incorporated in [England and Wales] with company number [COMPANY NUMBER]and whose registered office is at [INSERT REGISTERED OFFICE] (the Client).
BACKGROUND
(A)BACTEC supports the UK construction industry by assessing the risk of encountering items of unexploded ordinance (UXO) during construction works. BACTEChasand FINDMAPS havedeveloped an online system, BombRisk™, which allows authorised users to generate an online Preliminary UXO Assessment (as defined below), which provides an initial assessment of the risk of encountering items of UXO on a given construction site. The primary function of the Preliminary UXOP Assessment is to determine whether or not a detailed risk assessment is required.
(B)BACTEC has agreed to provide BombRisk Services to the Client in accordance with the terms of this Agreement.
IT IS AGREED as follows:
1DEFINITIONS
1.1The definitions and rules of interpretation in this clause apply in this Agreement:
Authorised Users / means those officers, employees and agents of the Client identified in Schedule 1 who are authorised to access the BombRisk Portaland such other officers, employees and agents as BACTEC may authorise to access the BombRisk Portal from time to time in writing.BombRisk Portal / means the portal currently hosted at (or such replacement site from time to time notified to the Client by BACTEC) through which the BombRisk Servicescan be accessed by the Client.
BombRisk Services / means the provision of Preliminary UXO Reports and Documentation through the BombRisk Portal in accordance with this Agreement.
Business Day / means any day (other than a Saturday, Sunday, bank or public holiday) on which banks are open in England.
Charges / means the charges payable by the Client to BACTEC as set out in Schedule 2.
Commencement Date / means [the date of this Agreement]or[Insert Date].
Confidential Information / means any information which is secret, confidential, technical and/or commercial relating to the BombRisk Portal, BombRisk Services, the Preliminary UXO Assessments or either party’s business (including without limitation know-how, software products, product development concepts or strategy information) which is either identified as confidential at the time of disclosure or ought reasonably to be considered confidential given the nature of the information or the circumstances of disclosure.
Documentation / the documentation made available to the Client by the BACTEC via the BombRisk Portal or otherwise (including, but not limited to, any user guides).
Initial Term / means [NUMBER] consecutive months from the Commencement Date.
Intellectual Property Rights / means any patents, rights to inventions, copyright and related rights, trademarks, trade names and domain names, rights in get-up, rights in goodwill or to sue for passing off, rights in designs, rights in computer software, database rights, rights in confidential information (including know-how and trade secrets) and any other intellectual property rights, in each case whether registered or unregistered and including all applications (or rights to apply) for, and renewals or extensions of, such rights and all similar or equivalent rights or forms of protection which may now or in the future subsist in any part of the world.
Permitted Use / means for the Client’s internal business use only or such other purposes as may be agreed in writing by a director or other authorised representative of BACTEC from time to time.
Preliminary UXO Assessments / means the reports made available through the BombRisk Portal at the request of the Client providing an initial assessment of the risk of encountering items of UXO on such sites in the UK as the Client may identify from time to time.
Terms of Access / means the terms of access set out in Schedule 3.
VAT / means value added tax chargeable under English law for the time being and any similar additional tax
1.2Clause, Schedule and paragraph headings shall not affect the interpretation of this Agreement.
1.3The Schedules form part of this Agreement and shall have effect as if set out in full in the body of this Agreement. Any reference to this Agreement includes the Schedules.
1.4Words in the singular shall include the plural and vice versa.
1.5A reference to any party shall include that party's personal representatives, successors and permitted assigns.
1.6A reference to a statute or statutory provision is a reference to it as amended, extended or re-enacted from time to time.
1.7A reference to writing or written includes e-mail but not faxes.
1.8References to clauses and the schedules are to the clauses and schedules of this Agreement; references to paragraphs are to paragraphs of the schedules.
1.9Any words following the terms including, include, in particular, for example or any similar expression shall be construed as illustrative and shall not limit the sense of the words, description, definition, phrase or term preceding those terms.
2SERVICES
2.1In consideration of the Client agreeing to be bound by the terms of this Agreement and subject always to the Clientpaying the Charges in accordance with clause 6, BACTEC hereby grants to the Client a non-exclusive, non-transferable, personal, royalty-free licence to access the BombRiskPortal and to receive the BombRisk Servicesfor the Permitted Purpose on the terms and subject to the conditions of this Agreement.
2.2The rights provided under this Agreement are granted to the Client only, and shall not be considered granted to any subsidiary or holding company of the Client (unless otherwise agreed in writing with BACTEC).
3AUTHORISED USERS
3.1The Client’s access to the BombRisk Portal shall be limited to Authorised Users, who will be allocated a username and password by BACTEC.
3.2With BACTEC’s consent, the Client may change the individuals nominated as Authorised Users. In such case, BACTEC shall issue a username and password to the new individual nominated as an Authorised User and disable the username and password of the individual no longer nominated as an Authorised User.
4CLIENT’S OBLIGATIONS
4.1The Client warrants and undertakes to:
4.1.1use the BombRisk Services (including, for clarity, the BombRisk Portal, Preliminary UXO Assessments and the Documentation) solely for the Permitted Purpose (unless otherwise agreed in writing by a director or other authorised representative of BACTEC from time to time) and the Client shall procure that all Authorised Users do the same;
4.1.2ensure that it keeps, and procure that all Authorised Users shall keep, any username or passwords (or any other security or login details) to the BombRisk Platform in its exclusive possession and control and safeguard such usernames and passwords (and any other security or login details) from access by any unauthorised person;
4.1.3ensure each Authorised User’s compliance with the Terms of Access set out in Schedule 3;
4.1.4ensure each time it orders a Preliminary UXO Assessment via the BombRisk Portal to log a valid corresponding project number;
4.1.5except as expressly provided in this Agreement or permitted by any applicable law, not attempt to use, reproduce, dispose of, deal with, rent, lease, sub-license, loan, modify, adapt, reverse engineer, decompile or disassemble the whole or any part of the BombRisk Services;
4.1.6except as expressly provided in this Agreement, the Client shall not use the BombRisk Services (wholly or in part) in its products or services orshare and/or redistribute the BombRisk Services (wholly or in part)with any third party regardless whether for commercial gain or otherwise. In the event that the Client does share and/or redistribute the BombRisk Services (whether wholly or in part) in breach of this clause then Bactec shall have the right at its sole option to terminate this Agreement and/or charge the Client additional charges in respect of such unauthorised redistribution at its undiscounted rates in force from time to time;
4.1.7not access (or permit any Authorised User or third party to access) all or any part of the BombRisk Services in order to build a product or service which competes with the BombRisk Services;
4.1.8not incorporate all or any part of the BombRisk Services or allow them to be incorporated in any other software or documentation;
4.1.9not use the BombRisk to provide services to third parties;
4.1.10use all its reasonable endeavours to prevent any unauthorised access to, or use of, the BombRisk Services and notify BACTEC promptly of any such unauthorised access or use;
4.1.11not use the BombRisk Portal or the network in any way that may degrade, diminish or result in the loss of performance of the same or the network;
4.1.12not attempt to obtain, or assist unauthorised third parties in obtaining, access to all or any part of the BombRisk Services;
4.1.13inform BACTEC immediately if there is a change of control (as defined in section 1124 of the Corporations Tax Act 2010) of the Client;
4.1.14not change, remove or obscure any labels, plates, notices, insignia, lettering or other markings which are on or embodied in all or in any part of the BombRisk Services; and
4.1.15indemnify and keep BACTEC indemnified against any loss, liability or damage to or arising from a breach of any warranties or undertakings provided by the Client in accordance with this clause 4.
5SERVICES
5.1BACTEC shall, during term of this Agreement, provide the BombRisk Services on and subject to the terms of this Agreement.
5.2BACTEC will use its reasonable endeavours to deliver any Preliminary UXO Assessments in relation to sites in the United Kingdom as the Client may request from time to time via the BombRisk Portal. The Preliminary UXO Assessments generated on the request of the Client will only be e-mailed to the respective Authorised User’s e-mail address as set out in Schedule 1.
5.3The Client acknowledges that the BombRisk Services have not been developed to meet its individual requirements and that it is therefore the Client’s responsibility to ensure that the BombRisk Services meet its requirements. As such BACTEC makes the BombRisk Services available to the Client on an “AS IS” basis and BACTEC does not warrant that the BombRisk Services (or any part of the same) will meet the Client’s requirements or that its operation will be uninterrupted or error-free.
5.4The Client acknowledges that the Preliminary UXO Assessments are created using information collected by BACTEC from third party providers. Whilst BACTEC will use its reasonable endeavours to review the completeness of the third party data it has received, BACTEC will not be responsible for any omission or error in the Preliminary UXO Assessments as a result of the third party data provided.
5.5BACTEC shall use its reasonable endeavours to generate a Preliminary UXO Assessment ordered by the Client via the BombRisk Portal within 24 working hours of receiving its order through the BombRisk Portal.
5.6BACTEC shall use commercially reasonable endeavours to make the BombRisk Services available 24 hours a day, seven days a week, except for:
5.6.1planned maintenance carried out during the maintenance window of 8.30 pm to 06.00 am UK time; and
5.6.2unscheduled maintenance performed outside its normal business hours.
5.7BACTEC may change the BombRisk Services without notice to the Client, provided that such changes to not materially alter or disrupt the Client’s enjoyment of the BombRisk Services.
5.8Any dates quoted for delivery of the BombRisk Services are approximate only, and the time of delivery is not of the essence.
6UPTIME AND SUPPORT
6.1BACTEC shall during the continuance of this Agreement use its reasonable endeavours to provide the Client with the Support Services. “Support Services” for the purposes of this Agreement shall mean the telephone and email support from time to time provided by BACTEC by contacting the [JOB TITLE], [NAME], by telephone on [Insert Telephone Number] or by email [E-mail Address], such support as varied by BACTEC and notified to the Client from time to time.
6.2BACTEC shall, during the continuance of this Agreement, use commercially reasonable endeavours to make the BombRisk Portal available however BACTEC does not warrant that the use of the BombRisk Services will be uninterrupted or error free and shall not be liable to the Client for any losses or damages which may be suffered by the Client as a result of any downtime or errors.
7CONNECTION
In order to access the BombRisk Services, the Client shall ensure that it complies with any minimum hardware and/or software configuration requirements specified by BACTEC (including without limitation an appropriate and secure internet connection with a minimum bandwidth speed of 10Mbps).
8CHARGES AND PAYMENT
8.1The Client shall pay the Charges to BACTEC in accordance with this clause6and Schedule 2.
8.2Invoices are due and payable 30 days after the invoice date.
8.3If BACTEC has not received payment within 30 days after the due date, and without prejudice to any other rights and remedies of BACTEC:
8.3.1BACTEC may, without liability to the Client, suspend the BombRisk Services and disable the Client's (and any Authorised User’s) password, account and access to all or part of the BombRisk Services and BACTEC shall be under no obligation to provide any or all of the BombRisk Services while the invoice(s) concerned remain unpaid; and
8.3.2interest shall accrue on a daily basis on such due amounts at an annual rate equal to 8% over the then current base lending rate of BACTEC's bankers in the UK from time to time, commencing on the due date and continuing until fully paid, whether before or after judgment.
8.4All amounts and fees stated or referred to in this Agreement:
8.4.1shall be payable in pounds sterling;
8.4.2are non-cancellable and non-refundable; and
8.4.3are exclusive of value added tax, which shall be added to BACTEC's invoice(s) at the appropriate rate.
8.5BACTEC may increase the Charges no more than once in any 12 month period, always provided that the first such increase shall fall after the first anniversary of the Commencement Date. BACTEC shall give the Client not less than 3 months' notice of any increase. Any increase in the Charges shall apply with effect from expiry of BACTEC’ notice.
9CONFIDENTIALITY
9.1Each party shall keep the other party's Confidential Information confidential and shall notuse any Confidential Information except for the purpose of exercising or performing its rights and obligations under this Agreement ordisclose any Confidential Information in whole or in part to any third party, except as expressly permitted by this clause 9.
9.2A party may disclose the other party's Confidential Information to those of its employees, officers, representatives, advisers and subcontractors (Representatives) who need to know that Confidential Information for the purpose of this Agreement, provided that:
9.2.1it informs those Representatives of the confidential nature of the Confidential Information before disclosure; and
9.2.2at all times, it is responsible for the Representatives' compliance with the confidentiality obligations set out in this clause 9.
9.3The term Confidential Information does not include any information that:
9.3.1is 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 9);
9.3.2was available to the receiving party on a non-confidential basis before disclosure by the disclosing party;
9.3.3was, 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;
9.3.4was known to the receiving party before the information was disclosed to it by the disclosing party;
9.3.5the parties agree in writing is not confidential or may be disclosed; or
9.3.6is required to be disclosed by an order of any court of competent jurisdiction or any competent judicial, governmental or regulatory body.
9.4The above obligations of confidentiality shall remain in full force and effect notwithstanding any termination of this Agreement.
10INTELLECTUAL PROPERTY RIGHTS
10.1The Client acknowledges that all Intellectual Property Rights in the BombRisk Services (including, for clarity, the BombRisk Portal, Preliminary UXO Assessments and the Documentation) or any related content or materials is owned by BACTEC or its licensors, as the case may be.
10.2BACTEC warrants that the Client’s use of the BombRisk Services in accordance with this Agreement will not knowingly infringe the Intellectual Property Rights of any third party.
10.3For the avoidance of doubt, the Client shall have no rights in BombRisk Services other than the right to use them (without modification or amendment) for the Permitted Purpose.
11LIABILITY
11.1Nothing in this Agreement limits or excludes either party’s liability for:
11.1.1death or personal injury resulting from its negligence;
11.1.2any damage or liability incurred by either party as a result of its fraud or fraudulent misrepresentation;
11.1.3for any infringement by either party of the other’s Intellectual Property Rights; or
11.1.4any matter which it would be illegal for such party to exclude or limit its liability in relation to.
11.2Subject to clause 11.1, BACTEC shall not in any circumstances be liable to the Client whether in contract, tort (including for negligence and breach of statutory duty howsoever arising), misrepresentation (whether innocent or negligent), restitution or otherwise, for any loss of profits, loss of contracts, loss of money, loss of anticipated savings, loss of business, loss of opportunity, loss of goodwill, loss of reputation, loss, damage to or corruption of data, or any indirect or consequential loss, and such liability is excluded whether it is foreseeable, known, foreseen or otherwise. For the avoidance of doubt, the exclusions set out in this clause apply, whether such losses are direct, indirect, consequential or otherwise.
11.3Subject to clauses11.1and clause 11.2,BACTEC’ total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation or otherwise shall not exceed the Charges paid to BACTECduring the 12-month period immediately before the date on which the cause of action first arose.
11.4Except as expressly stated in this Agreement, all warranties, conditions and terms, whether express or implied by statute, common law or otherwise are hereby excluded to the extent permitted by law.
12TERMINATION
12.1This Agreement shall commence on the Commencement Date and, unless terminated earlier in accordance with this clause12, shall continue until either party gives a minimum of 6 months’ written notice to terminate, such notice not to expire before the end of the Initial Term.