Rio Tinto FACTS

Terms of Service 


This Conditions of Use instrument constitutes the Terms of Service Agreement, hereinafter referred to as the “Agreement.” It is a legally binding Agreement between you (“You”), the visitor or user of the http://facts/circadian.com/riotinto/ website, hereinafter referred to as the “Site,” and Circadian, Inc. (“CIRCADIAN® ”/”Us”/”We” and words to that effect), the corporate owner and operator of this site. 

 

As a condition precedent to you being able to use any of the tools, functions, and services provided to you by this Site at no charge or fee, or to purchase a membership at this Site or pay a fee to obtain access and use of additional services or products offered by CIRCADIAN® or to purchase any product created by third parties and offered via this Site, you must read and agree to be bound by each and every one of the terms and condition contained in this Agreement, as amended by the Agreement between Rio Tinto Services Limited, and Circadian, Inc. dated April 12, 2010 (“Rio Tinto Circadian Agreement”). Should you access any component of this Site, or use any tools, functions, or services that this Site offers, registers as a member, or view any text or graphics, or purchase any product or service, such activities on your part expressly means that you have read this Agreement, as amended by the Rio Tinto Circadian Agreement, and agree to be bound by the terms and conditions contained herein, and in the Rio Tinto Circadian Agreement. Should you not agree to be bound by each and every term and condition contained in this Agreement as amended by the Rio Tinto Circadian Agreement, you must leave this Site at once and refrain from using any tool or service presented on our Site.

 

General Site Overview

 

We provide online software tools and a variety of information relating to assessing the probability that an individual was impaired by fatigue at the time of an incident, accident, error, or operational deviation, and the probability that that level of fatigue in that individual was the proximate cause of that incident, accident, error, or operational deviation (“FACTS”/”Fatigue Accident/Incident Causation Testing System”/”Software”/”Online Tools” and words to that effect). Please see our disclaimer for important information regarding the information that we provide.

 

Special Legal Guidelines

 

You must respect the trademarks, trade dress, and copyright as well as any patent and any and all intellectual property rights of any person or entity including CIRCADIAN® . You also must not violate the right of publicity or other similar rights. You may not defame any person or entity or violate any laws of any nature or jurisdiction while visiting our Site or using any tool or service that we provide to you.

You must follow any and all posted guidelines and rules of conduct regarding this Site and any such guidelines and rules are incorporated by reference into this document as if fully set forth herein.

You agree to hold us harmless and defend and indemnify us regarding any civil claim of any nature filed or threatened against us due to your violation of this section or your alleged or proven violation of any law of any nature in any jurisdiction.

We may deny you access to the Site at anytime for any reason without prior notice to you.

We may discontinue part or our entire Site at any time for any reason without prior notice to you.


You may not impersonate any third person or entity at any time.


Intellectual Property Provisions


All content provided within or via this Site is protected by various United States, state, and international copyright laws, patent laws, trademark regulations and laws, and various intellectual property laws and international treaties and agreements. No intellectual property of any nature contained within or via this Site may be copied, published, or broadcast in any way without the written permission or the content owner. The content of this Site may not be “framed” or “mirrored.” All trademarks presented on or via this Site are owned by their respective owners and may not be used by you in any way.

 

Disclaimer Regarding Functionality

 

All content, tools, functions, and services provided via this Site are provided on an “as is” basis and the Site disclaims any and all warranties, express or implied, including those warranties of merchantability, fitness for a particular purpose, title, and non-infringement. Such disclaimers may be limited to the laws of your state and, if so limited, may not apply to you. No warranties of validity regarding any of the content provided herein this Site are made and operators of this Site have not independently verified the validity of any of the content presented herein this Site. It is your duty to independently engage in due diligence to verify any and all claims presented within this Site.

 

Limited License for Personal Use


You are allowed to make one copy of the content of this Site made available to you by downloading such material into the cache of your personal computer. You may not reproduce or distribute any content provided by this Site. Your license to use a personal copy of this Site is irrevocable by the operators of this Site at any time upon notice to you at your last known email address or by posting a general notice on this Site to all users. Your license is terminated automatically upon your breach of any term or condition provided herein this Agreement.

  

 

Not Permitted for Use in Litigation

 

You agree and understand that FACTS or any of the data and information provided on this Site or downloaded from this Site is not designed to be used, and you agree that you will not use this Site or information obtained from this Site in the litigation of accidents and incidents where fatigue impairment is alleged by a party to the action.

CIRCADIAN® does not represent or warrant that the calculated overall probability of fatigue impairment derived by FACTS rises to the level of a reasonable degree of scientific or medical certainty required by a court of law, since it is not designed to consider all the relevant evidence that may be available in a litigated case. FACTS is specifically designed for statistical assessments of fatigue impairment in a population of people or employees involve in incident, accidents, or other events, but not for the use of litigating any claim concerning any action, error, or performance of any individual

Promulgation of CIRCADIAN®  or any of its employees, affiliates, or associations, including Dr. Martin Moore-Ede, as an expert based on FACTS software, data, fatigue probability scores, or other information obtained on or from this Site is misrepresentation.

Your use of this Site (or the use of the Site by any of your associates, partners, or employees or contractors, including expert witnesses) is expressly conditioned on your agreement not to use FACTS or any of the content or data derived from this Site, or the fact of our current or previous engagement by opposing counsel in other matters as a means of enhancing or diminishing our credibility in conjunction with any appearance before a trier of fact.

Should information become known that would make your continued use of this Site inappropriate, we reserve the right to deny your use of this Site.

 

 

Termination of Service

 

We reserve the right to terminate any and all service provided to you at any time without notice for any reason we deem fit. We also reserve the right to discontinue any service or modify any service with no notice to you. You agree that monetary damages may not adequately provide a remedy for us if you violate any of the terms and conditions of this Agreement and you agree that we may approach a Court of Equity of competent jurisdiction for the purpose of obtaining Orders in Equity should you violate any element of this Agreement.

 

Prohibited Content

 

You may not engage in any conduct that is harmful to this Site or to our members, visitors, or their computers.

 

Automatic Viewing or Usage of this Site

 

You may not use any automated scripts or “robots” to access, copy, or manipulate any content provided on this site. You may not engage in denial of service attacks upon the servers that publish this Site. You may not engage in any content that uses more than .01% of the hardware and software infrastructure of this Site.

 

Links to Third Party Sites

 

We may provide links to third party sites; however, we are not responsible for the content of such sites or their terms of use or privacy policies. Please review the terms of service and privacy policies of all such sites with care prior to usage. You assume the risk of any usage of such third party sites.

 

Limitation of Liability

 

Responsibility for any damages arising from your use of this Site, or any tools, functions, or services that this Site provides to you is governed by the Rio Tinto Circadian Agreement. 

 

Content Issues

 

We are not responsible for any content provided to us by our Site clients or any third parties or entities. We do not screen content provide by our Site clients or any third parties or entities and you agree that we do not have any duty to do so prior to such being published on our site. We are not liable for any content that may be obscene, indecent, misleading, fraudulent, racist, intolerant, harmful, or otherwise objectionable where such content has been displayed due to the actions of one or more of our users or any third party or entity. You agree to hold us harmless regarding any claims arising from your exposure, or the exposure of your family members, loved ones, or computers to any such content.

You understand and agree that use of the Internet means that you are subject to the risk of receiving or viewing harmful, offensive content and files. We do not promise that we will review and edit all content for safety, quality, accuracy, or decency that you encounter via our Site.

We do not endorse any of the products that you may purchase via our Site and we are not responsible for any product liability issues regarding those products. All warranties regarding such products are limited solely to the warranties provided by the manufacturers and the law, and the manufacturers are solely responsible for all warranties and guarantees of any and all nature.


Jurisdiction/Arbitration

 

This Agreement will be governed by and construed in accordance with the internal laws of the Commonwealth of Massachusetts, excluding that body of laws known as choice of law or conflict of laws. Subject to the provisions of this Section, all disputes, controversies, or claims arising out of or relating to this Agreement will be resolved through mandatory binding arbitration conducted in Boston, Massachusetts before J.A.M.S./ENDISPUTE or its successor (“JAMS”) pursuant to the United States Arbitration Act, 9 U.S.C. Section 1, et. Seq. (“Act”); and (iii) of this Agreement. The arbitration will be conducted in accordance with the provisions of J.A.M.S.’ Streamlined Rules and Procedures in effect at the time of filing of the demand for arbitration (“JAMS Rules”), subject to the provisions of this Section. The terms set forth in this Agreement will control in the event of any inconsistency between such terms and the JAMS Rules. The parties with cooperate with JAMS and with each other in promptly selecting a single arbitrator from JAMS’ panel of neutrals. If the parties fail to select an arbitrator within thirty (30( days following the date of either party’s notice of demand to conduct arbitration, then JAMS will appoint an arbitrator in accordance with JAMS Rules. The award of the arbitrator will be in writing and will set forth findings of fact and conclusions of law. Judgment on the arbitrator’s award will be final and binding upon the parties and may be entered in any court having jurisdiction thereof. If for any reason JAMS or its successor is no longer in business, then the arbitration shall be conducted in accordance with the commercial arbitration rules of the American Arbitration Association. The arbitrator’s fees will be shared equally by the parties and each party initially bear its own costs and attorneys’ fees, but the prevailing party shall be reimbursed by the other party for all attorneys’ fees, witness fees, and arbitration costs. All papers, documents, or evidence, whether written or oral, filed with or presented in connection with the arbitration proceeding will be deemed by the parties and by the arbitrator to be confidential information of both parties. The arbitrator chosen in accordance with these provisions will not have the power to alter, amend, or otherwise affect the terms of these arbitration provisions or the provisions of this Agreement. Notwithstanding the foregoing, nothing in this Section shall prevent either party from applying for and obtaining from a court a temporary restraining order and/or other injunctive relief. In the event that the amount in controversy is within the jurisdictional amount of the small claims court located in Boston, MA, the matter may be settled in the small claims court without any obligation to submit the cause of action to mandatory, binding arbitration as set forth herein. The jurisdictional limit for small claims in Massachusetts is two thousand dollars. You agree to waive any and all claims in excess of two thousand dollars if you agree to proceed to small claims court in Massachusetts to resolve any claim between yourself and us.


General Information

 

This Site may contain typographical errors or mistakes, and we disclaim any responsibility for such errors and you agree to hold us harmless from any legal responsibility for such errors.

We may revise or modify any portion of this Agreement at any time without notice to you. However, CIRCADIAN® will not revise or modify any portion of the Agreement from the Agreement that existed immediately prior to the date that CIRCADIAN® signed the Rio Tinto Circadian Agreement, unless CIRCADIAN® gives Rio Tinto prior notice of not less than 14 days of the proposed revisions or modifications to the agreement.

We may post user guidelines or rules on our site. If we do publish such materials, they are hereby incorporated into this Agreement as if fully set forth herein.


Notice

 

Notices to you may be issued via electronic mail or by surface mail at our sole discretion.

 

Force Majeure

 

Neither party shall be liable for any delay or failure in performance due to Force Majeure, which shall mean acts of God, earthquake, labor disputes, changes in law, regulation, or government policy, riots, war, fire, flood, insurrection, sabotage, embargo, epidemics, acts or omissions of vendors or suppliers, transportation difficulties, unavailability or interruption or delay in telecommunications or third party services (including DNS propagation), failure of third party software or hardware or inability to obtain raw materials, supplies, or power used in or equipment needed. We are not responsible for server downtime under any circumstances.

 

Intellectual Property Notices

You agree that you have been suitably noticed of any trademark, trade dress, service mark, copyright, patent, or any other intellectual property rights or property rights of any nature and any violation by you of any such property rights is fairly deemed to be “willful” in nature.

All product names, marks, logos, symbols, and company names are the property of their respective owners and subject to the protection of state, federal, and international laws and regulations.

 

Contacting Us

 

Email: info@circadian.com

 

Surface Mail:

Circadian International, Inc.

Attn: Dr Martin Moore-Ede

2 Main Street, Suite 310

Stoneham, MA 02481

USA