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