CONDITIONS OF USE FOR THE ACCESS TO SMART D-NET AND OUR WEBSITE
IMPORTANT NOTICE: PLEASE READ CAREFULLY BEFORE PROCEEDING:
BY CLICKING ON THE "ACCEPT" BUTTON BELOW YOU AGREE TO THE TERMS OF THIS END USER LICENCE AGREEMENT WHICH WILL BIND YOU. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENCE, WE ARE UNWILLING TO PERMIT YOU TO USE THIS WEBSITE AND SMART D-NET AND YOU WILL NOT BE ABLE TO PROCEED ANY FURTHER. IF YOU BYPASS OR OTHERWISE DISABLE USE OF THE "ACCEPT" FUNCTION BELOW AND NEVERTHELESS ACCESS OR OTHERWISE USE THE WEBSITE OR SMART D-NET, WITHOUT PREJUDICE TO OUR RIGHT TO RESTRICT OR LIMIT ACCESS TO YOU, SUCH ACTION SHALL BE TAKEN TO BE AN ACCEPTANCE OF THIS END USER LICENCE AGREEMENT.
1.1 In consideration of you agreeing to abide by the terms of this Licence the Licensor hereby grants to you a non-exclusive, non-transferable licence to use and access Smart D-Net and this Website on the terms of this Licence.
1.2 You may:
(a) use and access Smart D-Net and this Website using the specific login and password details provided to you by the designated person within your organisation only, for the purposes of training in multiple casualty incident response and triage at a multiple casualty scene and achieving certification by the Licensor in accordance with the Licensor's assessment criteria;
(b) interact with Smart D-Net in any way prompted to by the program underlying it;
(c) access Smart D-Net upto the maximum number of permitted times, in order to achieve certification by us in connection with Smart D-Net;
(d) use any documentation provided by the Licensor in support of the use permitted under condition 1.1 ("Documentation") and make such copies of the Documentation as are reasonably necessary for its lawful use by you in accordance with this agreement.
1.3 You acknowledge that:
(a)access to Smart D-Net and the Website is permitted on a temporary basis, and we reserve the right to withdraw or amend the service we provide on the Website without notice. We will not be liable if for any reason the Website or Smart D-Net is unavailable at any time or for any period;
(b)from time to time, we may restrict access to some parts of Smart D-Net and/or the Website, or the whole of Smart D-Net or the Website, to users who have registered with us;
(d)you are responsible for making all arrangements necessary for you to have access to Smart D-Net and the Website, and for the costs of doing so.
(a) not to attempt to access Smart D-Net or the Website once you have achieved certification, unless you are provided with a further user name and password for use of Smart D-Net or the Website by the designated person within your organisation in relation to a different version of Smart-D-Net;
(b) not to attempt to access Smart D-Net or the Website unless such access is in conjunction with a username and password, issued to you in an authorised manner, specifically for the purpose, by the designated person within your organisation;
(c) not to copy Smart D-Net, the Website nor any part of parts of them;
(d) not to rent, lease, sub-license (for value or otherwise), loan, translate, merge, adapt, vary or modify Smart D-Net or Documentation;
(e) subject to clause 1.2(b) above, not to make alterations to, or modifications of, the whole or any part of Smart D-Net or the Website nor permit Smart D-Net/the Website or any part of it to be combined with, or become incorporated in, any other programs;
(f) not to disassemble, de-compile, reverse engineer or create derivative works based on the whole or any part of Smart D-Net/Website nor attempt to do any such things.
2.2 You must not misuse Smart D-Net or the Website by knowingly introducing viruses, trojans, worms, logic bombs or other material which is malicious or technologically harmful. You must not attempt to gain unauthorised access to Smart D-Net or the Website, the server on which Smart D-Net or the Website is stored or any server, computer or database connected to Smart D-Net or the Website. You must not attack Smart D-Net or the Website via a denial-of-service attack or a distributed denial-of service attack. By breaching this provision, you would commit a criminal offence under the Computer Misuse Act 1990. We will report any such breach to the relevant law enforcement authorities and we will co-operate with those authorities by disclosing your identity to them. In the event of such a breach, your right to use our site will cease immediately.
2.3 You must permit the Licensor and his representatives, at all reasonable times and on reasonable advance notice, to inspect and have access to any premises, and to the computer equipment located there, at which Smart D-Net or the Documentation is being used, and any records kept pursuant to this Licence, for the purpose of ensuring that you are complying with the terms of this Licence.
2.4 You will indemnify the Licensor from and against all costs, claims, demands, liabilities, expenses, damages or losses (including without limitation consequential losses, loss of profit and loss of reputation, and all interest, penalties and legal and other professional costs and expenses) arising out of or in connection with any breach of your obligations and responsibilities in this Agreement including the undertakings and obligations in this clause 2 and clause 1 above.
3.1 You acknowledge that all intellectual property rights in the Website, Smart D-Net and the Documentation throughout the world belong to the Licensor, that rights in Smart D-Net are licensed (not sold) to you, and that you have no rights in, or to, the Website, Smart D-Net or the Documentation other than the right to use them in accordance with the terms of this Licence.
3.2 You acknowledge that you have no right to have access to the Website or Smart D-Net in source code form or in unlocked coding or with comments.
3.3 The integrity of Smart D-Net and the Website is protected by technical protection measures (TPM) so that the intellectual property rights, including copyright, in the software of the Licensor are not misappropriated. You must not attempt in any way to remove or circumvent any such TPM, nor to apply, manufacture for sale, hire, import, distribute, sell, nor let, offer, advertise or expose for sale or hire, nor have in your possession for private or commercial purposes, any means whose sole intended purpose is to facilitate the unauthorised removal or circumvention of such TPM.
4.1The Licensor warrants that it has tested Smart D-Net and the Website for viruses using commercially available virus-checking software, consistent with current industry practice.
4.2 You acknowledge that the Website and Smart D-Net have not been developed to meet your individual requirements and that it is therefore your responsibility to ensure that the facilities and functions of the Website and Smart D-Net meet your requirements.
4.3 You acknowledge that the Website and Smart D-Net may not be free of bugs or errors.
4.4 We will not be liable for any loss or damage caused by a distributed denial-of-service attack, viruses or other technologically harmful material that may infect your computer equipment, computer programs, data or other proprietary material due to your use of Smart D-Net or the Website or to your downloading of any material posted on it, or on any website linked to it.
5.1The content and material displayed on Smart D-Net and/or the Website is provided without any guarantees, conditions or warranties as to its accuracy. The training given by use of Smart D-Net is based on accepted triage practices at the time of the training and is designed to assist the triage officer to make appropriate decisions. However, it is the responsibility of the triage officer to overrule any training or guidelines given in connection with Smart D-Net when the clinical context requires. The final decision on any issue of triage remains the responsibility of the triage officer. To the extent permitted by law, the Licensor, other members of the Licensor's group of companies and third parties connected to the Licensor hereby expressly exclude:
(a) All conditions, warranties and other terms which might otherwise be implied by statute, common law or the law of equity.
(b) Any liability for any direct, indirect or consequential loss or damage incurred by any user or third party in connection with Smart D-Net/the Website, the training given within it, or in connection with the use, inability to use, or results of the use of Smart D-Net/the Website, any websites linked to it and any materials posted on it, including, without limitation any liability for:
- loss of income or revenue;
- loss of business;
- loss of profits or contracts;
- loss of anticipated savings;
- loss of data;
- loss of goodwill;
- wasted management or office time; and
- for any other loss or damage of any kind, however arising and whether caused by tort (including negligence), breach of contract or otherwise, even if foreseeable, provided that this condition shall not prevent claims for loss of or damage to your tangible property or any other claims for direct financial loss that are not excluded by any of the categories set out above.
5.2Nothing in this clause 5 of this Agreement, shall affect our liability for death or personal injury arising from our negligence, nor our liability for fraudulent misrepresentation or misrepresentation as to a fundamental matter, nor any other liability which cannot be excluded or limited under applicable law.
6.1The Licensor may terminate this Licence, or any other Licence to use Smart D-Net or our Website provided to any other person within your organisation ("Linked Licence") immediately by written notice to you and to any other party to any Linked Licence, or by termination of your access to the Website or Smart D-Net or the access of any other party to a Linked Licence if you commit a material or persistent breach of this Licence.
6.2 Upon termination for any reason:
(a) all rights granted to you under this Licence shall cease;
(b) you must cease all activities authorised by this Licence; and
(c) if applicable, you must immediately delete or remove Smart D-Net from all computer equipment in your possession and immediately destroy or return to the Licensor (at the Licensor's option) all copies of Smart D-Net then in your possession, custody or control and, in the case of destruction, certify to the Licensor that you have done so.
7.1 This Licence is binding on you and us and on our respective successors and assigns.
7.2 You may not transfer, assign, charge or otherwise dispose of this Licence, or any of your rights or obligations arising under it, without our prior written consent.
7.3 The Licensor may transfer, assign, charge, sub-contract or otherwise dispose of this Licence, or any of his rights or obligations arising under it, at any time during the term of the Licence.
All notices given by you to the Licensor must be given to TSG ASSOCIATES LLP at Albany Works, Long Lover Lane, Pellon, Halifax, West Yorkshire, HX1 4QF. The Licensor may give notice to you at either the e-mail or postal address you provided to when purchasing the Programme/Software. Notice will be deemed received and properly served 24 hours after an e-mail is sent, or three days after the date of posting of any letter. In proving the service of any notice, it will be sufficient to prove, in the case of a letter, that such letter was properly addressed, stamped and placed in the post and, in the case of an e-mail, that such e-mail was sent to the specified e-mail address of the addressee.
9.1 The Licensor will not be liable or responsible for any failure to perform, or delay in performance of, any of his obligations under this Licence that is caused by an event outside his reasonable control (Force Majeure Event).
9.2 A Force Majeure Event includes any act, event, non-happening, omission or accident beyond our reasonable control and includes in particular (without limitation) the following:
(a) strikes, lock-outs or other industrial action;
(b) civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war;
(c) fire, explosion, storm, flood, earthquake, subsidence, epidemic or other natural disaster;
(d) impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport;
(e) impossibility of the use of public or private telecommunications networks;
(f) the acts, decrees, legislation, regulations or restrictions of any government.
9.3 The Licensor's performance under this Licence is deemed to be suspended for the period that the Force Majeure Event continues, and he will have an extension of time for performance for the duration of that period. We will use our reasonable endeavours to bring the Force Majeure Event to a close or to find a solution by which our obligations under this Licence may be performed despite the Force Majeure Event.
10.1 If the Licensor fails, at any time during the term of this Licence, to insist on strict performance of any of your obligations under this Licence, or if the Licensor fails to exercise any of the rights or remedies to which he is entitled under this Licence, this shall not constitute a waiver of such rights or remedies and shall not relieve you from compliance with such obligations.
10.2 A waiver by the Licensor of any default shall not constitute a waiver of any subsequent default.
10.3 No waiver by the Licensor of any of these terms and conditions shall be effective unless it is expressly stated to be a waiver and is communicated to you in writing.
If any of the terms of this Licence are determined by any competent authority to be invalid, unlawful or unenforceable to any extent, such term, condition or provision will to that extent be severed from the remaining terms, conditions and provisions which will continue to be valid to the fullest extent permitted by law.
12.1 This Licence and any document expressly referred to in it represents the entire agreement between us in relation to the licensing of the Software and Documentation and supersedes any prior agreement, understanding or arrangement between us, whether oral or in writing.
12.2 We each acknowledge that, in entering into this Licence, neither of us has relied on any representation, undertaking or promise given by the other or implied from anything said or written in negotiations between us before entering into this Licence except as expressly stated in this Licence.
12.3 Neither of us shall have any remedy in respect of any untrue statement made by the other, whether orally or in writing, prior to the date we entered into this Licence (unless such untrue statement was made fraudulently) and the other party's only remedy shall be for breach of contract as provided in this Licence.
This Licence, its subject matter or its formation (including non-contractual disputes or claims) shall be governed by and construed in accordance with English law and submitted to the non-exclusive jurisdiction of the English courts.