1. THESE ARE THE TERMS AND CONDITIONS WHICH YOU ("THE USER") MUST ACCEPT IF YOU WISH TO USE THE ACTIONPRO SYSTEM ("THE SYSTEM") WHICH IS THE PROPERTY OF RISK ANALYSIS SERVICES LTD ("RAS"). ON FIRST LOGIN ONLY, ACCESS TO THE SITE WILL BE DENIED UNLESS AND UNTIL YOU HAVE TICKED THE APPROPRIATE BOX INDICATING ACCEPTANCE OF THESE TERMS AND CONDITIONS WHICH MAY BE AMENDED BY RAS AT ANY TIME WITHOUT NOTICE.
2. AGREEMENT BETWEEN USER AND RAS
2.1 The System is a computer based system devised by RAS to assist (inter alia) with identification and assessment of risk and risk management practices, business planning and business analysis accessed via a website controlled by RAS and made available to users via RAS’s licensees ("Licensees").
2.2 RAS grants certain rights to its Licensees to make available to their respective clients the right to access the System as a User. In each case the number of permitted log- ins is limited and is a matter for discussion with the Licensee of RAS from whom you are deriving your right to access the programme.
2.3 At the request of our Licensee and in consideration of your acceptance, without modification of the terms, conditions and notices set out below, RAS licenses you (on a non-exclusive basis) as a User to access the System.
2.4 The System (and the copyright and other intellectual property rights of whatever nature in the System with the exception of matters referred to in 2.5 below) are and shall remain the property of RAS.
2.5 The System permits the advertisement by the Licensee of services which may be those of the Licensee or third parties and which may be deemed by the Licensee to complement or be relevant to your use of the System. RAS has no responsibility for the advertisement of such services nor are they in any way endorsed by RAS. Their selection or use is entirely a matter for you and the Licensee and forms no part of this agreement.
2.6 You may not sell or transfer your login to anyone else. You may only use the System in the course of your normal internal business activities and not for private, personal reasons and not for any third party.
2.7 The System allows Users to supply answers to sets of questions and produce reports and guidance in the business areas covered by the System. The System uses logic- based computer software which cannot tell whether the information you input is complete or correct, or whether it makes legal or grammatical sense, or whether the outputs or reports generated by the System meet your particular business needs.
2.8 RAS will use reasonable skill and care in making the System available to you, in ensuring that the content of the System is accurate at the time it is added to the System and in developing software which is capable of providing output or reports in accordance with the descriptions on the System. However, as the System is based on dynamic web-based content, your use of the System does not constitute an audit or expert opinion or specific legal, tax, financial or business advice and should only be interpreted and used as general guidance. The Licensee and RAS strongly recommend that you seek advice from a suitably qualified professional adviser before dealing with any situation covered by the System.
2.9 The system is only updated from time to time and RAS accepts no responsibility for delays between a change in law or practice occurring and the System being amended to take account of the change.
2.10 RAS may at any time without notice, statement of reason or penalty of any sort deny access to the System. (In practice, such denial is only expected to arise in order to protect the System or your data from harm or to carry out essential maintenance).
2.11 RAS and its Licensees may use mass data entered into the System by Users for the creation of statistical information about use of the System. In the creation of such statistical information RAS will not disclose the identity of any User to any third party.
3 WARRANTY AND INDEMNITY
3.1 RAS warrants that the software and all intellectual property comprised in the System (with the exception of any material referred to in 2.5 above) are the unencumbered property of and were created by RAS which has free right of disposal thereof and that such intellectual property does not infringe any third party rights.
3.2 RAS warrants that the System will perform substantially in accordance with any specifications thereof provided by RAS.
3.3 The warranty in 3.2 does not apply to any non-performance by the System that is caused by:
3.3.1 an accident
3.3.2 circumstances beyond the control of RAS
3.3.3 improper or inadequate maintenance or calibration of any computer or device used by you to access the System
3.3.4 connecting or merger with any software apparatus or other material not furnished or approved by RAS or
3.3.5 any modification to the System by you or anyone other than RAS.
3.4 RAS accepts no responsibility for loss or damage flowing from your use of the System which is intended to complement and not to replace the experience and judgement of the user or the need for expert or professional advice.
3.5 You hereby indemnify RAS and agree to hold it harmless against any and all claims arising out of your activities in connection with these terms and conditions and arising out of your negligence or want of care.
3.6 You hereby indemnify RAS against any liability flowing from data you upload to the System.
4 CONFIDENTIALITY AND RETURN OF MATERIALS
4.1 You will keep confidential all information marked as confidential, all information which is manifestly of a confidential nature, the business secrets, data and any other information which you may obtain from RAS in connection with these terms and conditions and the operation thereof. This undertaking shall not include: (i) information which, at the time of receipt or following receipt is either in the public domain or becomes generally available in the public domain by publication or otherwise through no breach of this agreement by the you; or (ii) information which was lawfully in your possession prior to receipt, or subsequently comes lawfully into your possession otherwise than pursuant to disclosure pursuant to this agreement.
4.2 You shall promptly inform RAS if you become aware of any breach of clause 4.1 or any other breach of confidence.
4.3 Upon termination of the licence to access the System for whatever reason you will cease to use the System and will return to RAS (or at their direction) any confidential information which you may hold in paper or electronic form.
4.4 Notwithstanding Clause 4.3, you may retain any information or reports generated by and downloaded from the System before termination of your licence.
5 YOUR OBLIGATIONS
5.1 You will:
5.1.1 Not use, show, assign, sub-licence, or otherwise part with possession of the System (in whole or in part) to any person, firm, company or organisation and will take all reasonable steps to prevent persons in your employment from doing so.
5.1.2 Not permit use of or access to the System by any person not directly under your control and direction; and
5.1.3 Take all reasonable and prudent steps to safeguard the System against unauthorised access or use.
5.1.4 Not upload to the System any data which
(a) is unlawful, harmful, threatening, abusive, harassing, tortious, defamatory, obscene, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable;
(b) you do not have a right to transmit under any law or under contractual or fiduciary relationships (including, but not limited to inside information, proprietary and confidential information received during employment or under a non disclosure agreement);
(c) infringes any patent, trademark, copyright or other intellectual or proprietary rights of any third party;
(d) contains viruses or any other computer code, files or programs that may interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
(e) may interfere with or disrupt the System;
6.1 You acknowledge that data you upload to the System may include personal data as defined in the Data Protection Act 1998 and that the System will process such data.
6.2 You acknowledge that such data may be transferred to servers situated in countries that do not have the same level of data protection as the United Kingdom.
6.3 You consent to the System processing your personal data and you consent to the transfer of your personal data abroad.
6.4 Where the data uploaded relates to someone other than you, you warrant that you have the authority of that person to:
6.4.1 give consent to the processing of their personal data;
6.4.2 give consent to the transfer of their personal data abroad;
6.5 You shall indemnify RAS in respect of any liability arising under the Data Protection Act 1998 in relation to the data you upload to the System.
7 LIMITATION OF LIABILITY
7.1 This condition 7 sets out the entire financial liability of RAS (including any liability for the acts or omissions of its employees, agents and sub-contractors) to you in respect of:
7.2 any breach of these terms and conditions arising from:
7.2.1 your use of the System; and
7.2.2 any representation, statement or tortious act or omission (including negligence) arising under or in connection with this agreement.
7.3 All warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from these terms and conditions.
7.4 Nothing in these terms and conditions limits or excludes the liability of RAS:
7.4.1 for death or personal injury resulting from negligence; or
7.4.2 for any damage or liability incurred by you as a result of fraud or fraudulent misrepresentation by RAS; or
7.5 Subject to condition 7.3 and condition 7.4:
7.5.1 RAS shall not be liable, whether in tort (including for negligence or breach of statutory duty), contract, misrepresentation or otherwise for:
(a) loss of business; or
(b) depletion of goodwill and/or similar losses; or
(c) loss of contract; or
(d) loss or corruption of data or information; or
(e) any special, indirect, consequential or pure economic loss, costs, damages, charges or expenses.
7.5.2 RAS’s total liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with your use of the System shall be limited to the amount received by RAS from the Licensee at whose request you have been licensed to access to the System.
8.1 These terms and conditions supersede all prior agreements arrangements and understandings between us and constitute the entire agreement between us.
8.2 You acknowledge that, in accepting these terms and conditions, you have not relied on, and shall have no right or remedy in respect of, any statement, representation, assurance or warranty (whether made negligently or innocently) other than as expressly set out in these terms and conditions.
9 TERMINATION
9.1 RAS reserves the right, in its sole discretion to terminate your licence to access to the System at any time, without notice.
9.2 Termination of the licence shall not bring to an end:
9.2.1 Clause 4.1 and 4.2 and any other secrecy obligations on the parties hereto; or
9.2.2 Clause 6; or
9.2.3 Your obligations to pay fees or other sums which have accrued due.
9.3 RAS may at any time after termination of the licence delete from the System the data uploaded by you to the System. RAS is not obliged to delete the data uploaded to the System immediately upon termination.
10 GENERAL
10.1 These terms and conditions shall be governed by the laws of England and Wales.
10.2 In the event of any dispute between us the matter shall be referred to arbitration under the Rules of the London Court of Arbitration by a single arbitrator whose decision shall be final. In the event that the parties are unable to agree on an arbitrator, he shall be appointed (on the application of either of us) by the President for the time being of The Law Society.
10.3 If any provision in whole or in part of these terms and conditions proves to be unenforceable or illegal the remainder of the provision in question and the remainder of the terms and conditions shall continue to have full force and effect.
10.4 We both confirm our intent not to confer any rights on any third parties by virtue of these terms and conditions and accordingly the Contracts (Rights of third Parties) Act 1999 shall not apply to these terms and conditions.