PLEASE READ CAREFULLY THIS IS A BINDING LEGAL AGREEMENT
End User License Agreement
THIS END USER LICESING AGREEMENT (EULA) (“Agreement”) GOVERNS YOUR ACCESS TO AND USE OF OUR SERVICES. IT IS EFFECTIVE AS OF THE DATE YOU ACCEPT THIS AGREEMENT. BY CLICKING ON THE “I accept” BUTTON BELOW OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS AUTHORITY TO BIND THAT ENTITY. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SELECT THE “I do not accept” BUTTON BELOW AND DO NOT USE THE SERVICES.
THIS AGREEMENT ALSO APPLIES TO ANY AND ALL VERSIONS OF THE SERVICES.
1. DEFINITIONS. Capitalized terms have the meaning given to them in this Agreement, including in this Section.
1.1. “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control of the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.2. “Business Day” means Monday to Friday other than statutory holidays in the provinces of Alberta, Canada.
1.3. “Order Form” means one or more documents for identifying the Services provided to You by Us under this Agreement. By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Order Forms shall be deemed incorporated herein by reference.
1.4. “Purchased Services” means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.
1.5. “Services” means the products and services that are ordered by You under an Order Form and made available by Us via the use of the Internet at web pages designated by Us.
1.6. “Subscription Fee” means the amounts payable to Us in consideration for access to the Services as specified in the applicable Order Form(s).
1.7. “User(s)” means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered and the applicable Subscription Fee paid, and who have been supplied user identifications and passwords by You (or by Us at Your request). Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business, all of whom are bound to adhere to the terms of this Agreement.
1.8. “We,” “Us”, “Our” or “SafetyVantage” means SafetyVantage, the trading name of SafetyVantage, Inc.
1.9. “You” or “Your” or ”Customer” means the legal entity for which the person signing the Order Form is accepting this Agreement.
1.10 We reserve the right to update and change the Agreement from time to time by providing You with 30 days’ notice. Any new features that augment or enhance the current Service, including the release of new tools and resources, shall be subject to the Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes. You can review the most current version of the Terms of Service at any time at: https://www.SafetyVantage.com/End-User-License-Agreement
1.11 You may not access the Services if You are a direct competitor of Ours, except with prior written consent from Us. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. We shall be the sole determiner of what firms are considered competitors.
1.12 Violation of any of the terms may result in the termination of your Account.
2. OUR SERVICES
2.1. Upon payment of the Subscription Fee and solely during the Term, We will make the Services available to You pursuant to the terms of any Order Form and this Agreement; and use commercially reasonable efforts to provide our Standard Support for Purchased Services available to You as discussed in the Service Level Agreement available here https://www.SafetyVantage.com/Service-Level-Agreement.
2.2. Service Level Agreement (SLA) means only technical support for the Purchased Services as set forth at https://www.SafetyVantage.com/Service-Level-Agreement. Standard technical support does not include: customization to the Services; additional training; hardware and related supplies and support thereof; and any support services provided at Your locations. We may revise our SLA from time to time, with changes effective upon posting of the revised policy at https://www.SafetyVantage.com/Service-Level-Agreement.
2.3. Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions with varying permission levels and may be accessed by no more than the specified number of Users at that specific permission level, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions.
3. USE OF SERVICES
3.1. Usage Limitations. You may only permit Users to use the Services and You shall be liable for all use of the Services by Users and any breach of this Agreement by any User. Except as expressly provided herein, You shall not permit third parties to have access to or use of the Services. You may not download, copy or reproduce any portion of the Services, except as permitted by this Agreement. You shall not, and shall not permit anyone else to reverse engineer, decompile, or disassemble the Services. You shall not modify, adapt, alter, edit, correct, translate, publish, sell, transfer, assign, convey, rent, lease, loan, pledge, sublicense, distribute, export, enhance, or create derivative works based upon the Services, in whole or part, or otherwise grant or transfer rights to the Services or the rights granted herein in any form or by any media (electronic, mechanical, photocopy, recording, or otherwise). You shall not use the Services to provide data processing services, commercial timesharing, rental, service bureau or any similar sharing arrangement for a third party. You shall not interfere, or attempt to interfere, with the Services in any way. You shall not engage in any fraudulent, illegal or unauthorized use of the Services. You shall not use, or permit any third party to use, the Services for the purpose of developing, selling, distributing, or sublicensing any software or service that competes with the Services.
3.2. Your Responsibilities. You are solely responsible for (i) all storage, backup and retrieval of Your data and You are also responsible to create back-up records of all information entered by You into the Services; (ii) the accuracy of all data and information entered into the Services; (iii) providing all information regarding function, format and data interpretation to Us as requested in order for Us to successfully complete the Services in accordance with the terms and conditions of this Agreement; (iv) providing a proper operating environment for the Services including, at a minimum, the current system requirements as published by Us; and (v) and must provide, all telephones, telecommunications connections, computers, hardware and software equipment and services necessary to access the Internet and the Services You will use the Services in compliance with all applicable laws including, without limitation, Canadian copyright and export laws. You will within 30 days of request from Us or Our representative, fully document and certify Your compliance with this Agreement at the time of Our request.
3.3. Scope. You acknowledge that the Services are simply a tool to assist You, that We do not provide legal, industry specific, health, safety or compliance services, and that You are solely responsible for Your safety and compliance with all laws, rules and regulations applicable to You.
3.4. Export Control. You will not export or re-export directly or indirectly the Services to any countries except in compliance with the Canadian Export Administration and any other Canadian export laws. In particular, but without limitation, the Services may not be exported or re-exported (including, without limitation, any download or delivery): (i) into (or to a national or resident of) any Canadian. embargoed country; or (ii) to anyone on the Canadian Governments list of Specially Designated Nationals or the Canadian Governments Department of Trade Table of Denial Orders. By using the Services, You represent and warrant that You are not located in, under control of, or a national or resident of any country to which export is prohibited or on any list maintained by the Canadian or U.S. government prohibiting delivery of the Services to You.
3.5. Third-Party Products. We or third parties may from time to time make available to You third-party products or services either through the Services, by way of hyperlinks, or externally. Any acquisition by You of such third-party products or services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified”, part of an authorized configuration or otherwise.
4. FEES AND PAYMENTS
4.1. You shall pay the Subscription Fee in advance for the Services in the manner (e.g., cheque, credit card, ACH debit, etc.) specified on the Order Form. Subscription Fees are based on Services purchased and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable. The number of User subscriptions purchased cannot be decreased during the relevant subscription Term stated on the applicable Order Form. All Subscription Fees are stated in Canadian Dollars.
If You are paying by credit card, you authorize Us to charge your credit card or bank account at the beginning of the Term. If you are paying by invoice we will invoice you at the beginning of the Term and each subsequent billing period. You will inform Us of changes to your contact information, billing information and credit card information (where applicable).
4.2. In addition to the Subscription Fee, You shall pay all taxes, however designated, including sales and use taxes, goods and services value added, duties and tariffs and other governmental charges payable in relation to use of the Services. If a certificate of exemption or similar document is to be used in order to exempt You from that liability, You must furnish a copy of the certificate to Us prior to commencement of the Term. In the event that You are prohibited by law from making payments to Us free of deductions or withholdings, You will pay the additional amounts to Us as may be necessary to ensure that the actual amount received by Us after deduction or withholding and after payment of any additional taxes or charges due as a consequence of the payment of the additional amounts, equals the amount that would have been received by Us if the deductions or withholdings were not required.
4.3. You will be responsible for, and We are entitled to recover from You, all costs associated with collecting any fees or other amounts due and owing to Us from You, including but not limited to any legal costs, lawyers fees, court costs and collection agency fees.
4.4. If You fail to pay any amounts owing to Us by the applicable due date, We will have the right to: assess late charges each month until such amount is paid in an amount equal to 1% per month of the overdue amounts or the maximum amount permissible under applicable law; and suspend any or all of the Services or terminate this Agreement, without relieving You of Your obligations with respect to any amounts due to Us.
4.5. We may provide Consulting Services to you pursuant to an Order Form or Statement of Work. Fees for these Consulting Services are in addition to your Subscription Fee. Unless otherwise agreed, all Consulting Services are performed remotely.
For Consulting Services performed on-site, you will reimburse us our reasonable cost for all expenses incurred in connection with the Consulting Services. Any invoices or other requests for reimbursements will be due and payable within thirty (30) days of receipt of the invoice.
Hours purchased as part of a consulting package are non-refundable and expire the earlier of i. the date set forth in the Order Form and ii. one hundred and eighty (180) days from purchase.
Renewal Subscription Term
4.6. Unless one of us gives the other written notice that it does not intend to renew the subscription, this Agreement will automatically renew for the shorter of the Initial Subscription Term or one year (“Renewal Subscription Term”). Written notice of non-renewal must be sent no fewer than forty-five (45) days in advance of the end of the Subscription Term. The Renewal Subscription Term will be on the current terms and conditions of this Agreement, and subject to the renewal pricing provided for in your Order Form. If You exceed the number of Users that are permitted to use the Services, Your pricing will increase based on the maximum number of Users during Your Subscription Term. We determine the maximum number of Users in the Subscription Term and at Your request, we will provide You with the detail that we used to calculate the maximum number of Users. Should You decide not to renew, You may send the notice of non-renewal by email to Support@SafetyVantage.com.
4.7. The Subscription Term will end on the expiration date and cannot be canceled before its expiration
5. MODIFICATIONS TO THE SERVICE AND PRICES
5.1. We reserve the right at any time and from time to time to modify the Service (or any part thereof) with or without notice as part of our standard development practices. We reserve the right at any time to discontinue, temporarily or permanently, the service (or any part thereof) and will provide You with 45 days’ notice of any changes that are expected by Us. If the entire Service is discontinued, You will receive a refund equal to the prorated amount of unused Services.
5.2 Prices of all Services, including but not limited to monthly subscription plan fees to the Service, are subject to change upon 30 days’ notice from Us. Such notice may be provided at any time by posting the changes to the SafetyVantage Site (www.SafetyVantage.com) or the Service itself. Your price shall be maintained for the duration of the Term of your Service.
5.3. We shall not be liable to You or to any third party for any modification, price change, suspension or discontinuance of the Service.
6. OWNERSHIP AND LICENSES
6.1. The Services. We own all right, title and interest in and to the Services and any software or hardware used to provide the Services, in whole or in part, and including, without limitation, all patent, copyright, trade-marks, trade secret and all other intellectual property, proprietary and industrial property rights in the Services and the structure, sequence and organization of same, and the media on which such material is contained. You will not alter, remove, cover or otherwise obscure any copyright notices, trade mark notices and any other intellectual property rights attaching to or displayed on the Services, and any other material made available under this Agreement. Your sole rights are only those limited rights to access and use the Services that are granted by Us pursuant to this Agreement. You shall promptly notify Us of any infringement or improper or unauthorized use of which You have knowledge.
6.2 In agreeing to these Terms, you also agree that the rights in the Service and that We, including all intellectual property rights, are protected by one or more of copyright, trademark, patent, trade secret and other laws, regulations and treaties, in addition to these Terms and any Separate Agreement. In particular, You agree to not modify, create derivative works of, decompile or otherwise attempt to extract source code from Us, unless you are expressly permitted to do so under an open source license or if we give you express written permission.
6.3. All customers are encouraged to comment on the Service, provide suggestions for improving it, and vote on suggestions they like. You agree that all such comments and suggestions will be non-confidential and that we own all rights to use and incorporate them into the Subscription Service or Consulting Services, without payment to You.
6.4. License to Data. You hereby grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit, and display Your data to You or Your Users as necessary for Us to provide the Services according to the terms of this Agreement.
7. PRIVACY AND USE OF INFORMATION
7.1. You shall at all times comply with all relevant privacy legislation, regulations and any privacy related professional obligations applicable in the use of the Services and, without limiting the generality of the foregoing, the collection, use and disclosure of data forming part of, incorporated, submitted or used in connection with the Services. You acknowledge and agree that all information and data provided, supplied or entered into the Services may be relied upon by third parties. You represent and warrant that all information and data provided, supplied or entered into by You into the Services shall be true, correct and complete.
7.2. You understand that We may gather, collect, utilize, market and sell information related to the usage patterns, utilized or contributed data provided, entered or supplied by You in connection with this Agreement (“Usage Data”) provided that any such use shall only be made in an aggregate and anonymous format. Upon termination of this Agreement, We shall be entitled to retain and use the Usage Data.
7.3. Certain features of the Services use location-based services. You authorize Us to collect, use, and share precise location data with You or Your Users, including the real-time geographic location of any device using the Services as necessary for Us to provide the Services according to the terms of this Agreement. This location data is collected in accordance with Your use of the Services and may require a User’s personal information for the feature to work as intended by You.
7.5. You retain copyright and any other rights You already held in the Customer Data before You submitted, posted or displayed it on or through the Service. You grant Us a limited license, as described below, so We can make Your data accessible and usable on the Service. Other than this limited license and other rights You grant in this Agreement, SafetyVantage acknowledges and agrees that we do not obtain any right, title or interest from You under this Agreement in any of your Customer Data.
7.6. In order to enable Us to operate the Service, We must obtain from You certain license and other rights to the Customer Data You submit so that Our processing, maintenance, storage, technical reproduction, back-up and distribution and related handling of Your Customer Data doesn’t infringe applicable copyright and other laws. This means that by using the Service and uploading Customer Data, you grant Us a license to display, perform and distribute your Customer Data and to modify and reproduce such Customer Data to enable Us to operate the Service. You also agree that We have the right to elect not to accept, post, store, display, publish or transmit any Customer Data we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or this Agreement.
You agree that these rights and licenses are royalty free, irrevocable and worldwide (for so long as Your Customer Data is stored with Us), and include a right for Us to make such Customer Data available to, and pass these rights along to, others with whom We have contractual relationships related to the provision of the Service, solely for the purpose of providing such services, and to otherwise permit access to or disclose Your Customer Data to third parties if We determine such access is necessary to comply with Our legal obligations.
If You elect to use any third-party service or application that is integrated with SafetyVantage, You also agree that the license granted to Us in the preceding paragraph shall apply to Customer Data that is submitted or uploaded through such third party service or application. If the third-party service or application You elect to use would access or extract Customer Data, You grant Us the right and license to enable such access to and extraction of Your Customer Data. SafetyVantage does not assume any responsibility for, or liability on account of, the actions or omissions of such third-party applications or service providers.
Inasmuch as we rely upon your rights to upload and distribute Your Customer Data, You represent and warrant to SafetyVantage that You have the unfettered legal rights and authority to submit your Customer Data to SafetyVantage, and to make any publication or other distribution of that Customer Data in Your use of the Service. You also represent to Us that, by submitting Customer Data to Us and granting Us the rights described in these Terms, You are not infringing the rights of any person or third party.
Finally, You understand and agree that SafetyVantage, in performing the required technical steps to provide the Service to Our users, may make such changes to your Customer Data as are necessary to conform and adapt that Customer Data to the technical requirements of connecting networks, devices, services or media.
8. GENERAL CONDITIONS
8.2. You understand that We use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Service.
8.3. You must not modify, adapt or hack the Service or modify another website so as to falsely imply that it is associated with the Service, Us, or any other of Our services.
8.4. You agree not to reproduce, duplicate, copy, sell, resell or exploit any portion of the Service, use of the Service, or access to the Service without the express written permission by Us.
8.5. We may, but have no obligation to, remove Customer Data and Accounts containing Customer Data that we determine in our sole discretion are unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or otherwise objectionable or violates any party’s intellectual property or this Agreement.
8.6. Verbal, physical, written or other abuse (including threats of abuse or retribution) of any of Our customers, employees, members, or officers will result in immediate account termination.
8.7. You understand that the technical processing and transmission of the Service, including your Customer Data, may be transferred unencrypted and involve:
• transitions over various networks; and
• changes to conform and adapt to technical requirements of connecting networks or devices.
8.8. You must not upload, post, host, or transmit unsolicited email, SMSs, or “spam” messages.
8.9. You must not transmit any worms or viruses or any code of a destructive nature.
9.1. Defined. “Confidential Information” means any non-public information of Ours, including, but not limited to, trade secrets, processes, methods, ideas, algorithms, plans, software source code, technical specifications, engineering data, computer software programs, manufacturing know-how, or other information relating to, incorporated in or forming part of the Services, the specifications and Documentation and any other information which would be reasonably considered to be confidential, including the terms of this Agreement. The obligations of confidentiality imposed by this Section shall not apply, or shall cease to apply, to any Confidential Information: which at the time of disclosure is within the public domain, other than through a breach of this Agreement; which after disclosure becomes readily and lawfully available to the industry or the public, other than through a breach of this Agreement; which You can establish, by documented and competent evidence, was in its possession prior to the date of disclosure of such Confidential Information by Us.
9.2. Treatment. You shall treat the Confidential Information in strict confidence and shall not disclose, transfer, copy, reproduce, electronically transmit, store or maintain, remanufacture or in any way duplicate all, or any part of, the Confidential Information except in accordance with the terms and conditions of this Agreement. You shall be directly liable for the acts or omissions of Users, employees, agents and contractors with respect to such confidentiality obligations. You agree to protect the Confidential Information with the same standard of care and procedures which You use to protect Your own trade secrets, proprietary information and other confidential information and, in any case, not less than a reasonable standard of care.
9.3. Compelled Disclosure. In the event that You are required by law or direction of a regulatory authority to disclose Confidential Information, You shall provide Us with prompt written notice of the requirement sufficiently in advance to permit Us to seek a protective order or other appropriate remedy to prevent such disclosure. In the event that such protective order or other remedy is not obtained, You shall only disclose such portion of the Confidential Information as may be required to be disclosed.
10.1 You agree to indemnify and hold Us, and Our subsidiaries, Affiliates, officers, agents, employees, advertisers and partners harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including legal and other professional fees) arising from or in any way related to any third party claims relating to Your use of any of the Service, any violation of this Agreement or any other actions connected with Your use of the Service (including all actions taken under your account). In the event of such claim, We will provide notice of the claim, suit or action to the contact information we have for the account, provided that any failure to deliver such notice to you shall not eliminate or reduce your indemnification obligation hereunder.
10.2 The Service Is Available “As Is.” YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
(a) YOUR USE OF THE SERVICE AND THE PURCHASE AND USE OF ANY PRODUCTS ARE ALL AT YOUR SOLE RISK. THE SERVICE IS PROVIDED AND PRODUCTS ARE SOLD ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED BY LAW, SAFETYVANTAGE EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
(b) WE DO NOT WARRANT THAT (i) THE SERVICE WILL MEET ALL OF YOUR REQUIREMENTS; (ii) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) ALL ERRORS IN THE SOFTWARE OR SERVICE WILL BE CORRECTED; OR (iv) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURCATE OR RELIABLE.
(c) ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER OR OTHER DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF ANY SUCH MATERIAL.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS OF SERVICE.
11. DISCLAIMER OF WARRANTY
EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN “AS IS“ BASIS AND WE MAKE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW OR OTHERWISE, REGARDING THE SERVICES OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, FUNCTIONALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION WILL BE UNINTERRUPTED, ERROR FREE OR SECURE, OR THAT ALL CUSTOMER DATA OR DATA DELIVERED OR PROVIDED UNDER THIS AGREEMENT OR THROUGH USE OF THE SERVICES WILL BE APPROPRIATE OR APPLICABLE TO YOUR USE. WITHOUT LIMITING THE FOREGOING, YOU ACKNOWLEDGE THAT WE SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY THIRD-PARTY PRODUCTS PROVIDED TO YOU UNDER THIS AGREEMENT AND THAT YOUR SOLE AND EXCLUSIVE REMEDY RELATED TO SUCH PRODUCTS SHALL BE WITH AND AGAINST THE THIRD-PARTY MANUFACTURERS OF SUCH PRODUCTS.
12. LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE, AND OUR SUBSIDIARIES, AFFILIATES AND LICENSORS, AND OUR AND THEIR RESPECTIVE OFFICERS, EMPLOYEES, AGENTS AND SUCCESSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COVER OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICE; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, PRODUCTS, DATA, INFORMATION OR SERVICE PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (iii) UNAUTHORIZED ACCESS TO OR THE LOSS, CORRUPTION OR ALTERATION OF YOUR TRANSMISSIONS, CUSTOMER DATA OR DATA; (iv) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON OR USING THE SERVICE, OR PROVIDING ANY SERVICES RELATED TO THE OPERATION OF THE SERVICE OR RELATED OUR MARKET; (v) OUR ACTIONS OR OMISSIONS IN RELIANCE UPON YOUR ACCOUNT INFORMATION AND ANY CHANGES THERETO OR NOTICES RECEIVED THEREFROM; (vi) YOUR FAILURE TO PROTECT THE CONFIDENTIALITY OF ANY PASSWORDS OR ACCESS RIGHTS TO YOUR ACCOUNT INFORMATION; (vii) THE ACTS OR OMISSIONS OF ANY THIRD PARTY USING OR INTEGRATING WITH THE SERVICE OR OFFERING PRODUCTS IN OUR MARKET; (viii) ANY ADVERTISING CUSTOMER DATA
THE LIMITATIONS IN THIS SECTION 12 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND WILL APPLY EVEN IN THE EVENT OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR HAVE LEGISLATION THAT RESTRICTS THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN THOSE JURISDICTIONS. YOU AGREE THAT OUR LICENSORS WILL HAVE NO LIABILITY WHATSOEVER TO YOU.
Claims Are Time-Barred. You agree that regardless of any statute or law to the contrary or the applicable dispute resolution process, any claim or cause of action you may have arising out of or related to use of the Service or otherwise must be filed within Six (6) months after such claim or cause of action arose or you hereby agree to be forever barred from bringing such claim.
13. TERM, TERMINATION AND SUSPENSION
13.1. Term. This Agreement becomes effective as of the date You sign the Order Form, provided that We shall not be obligated to provide the Services until you have executed an Order Form and paid the applicable Subscription Fees, and shall continue until all subscriptions have expired (“Term”).
13.2. Termination or Suspension by Us. If any of the following conditions arise during the Term, We shall have the right, at Our option, to terminate this Agreement by giving a written notice of such termination to You, whereupon this Agreement shall immediately cease and terminate: if You breach Your confidentiality obligations under this Agreement; or You fail to pay any amount due under this Agreement. We reserve the right to deny, suspend or revoke access to the Services, in whole or in part, if We believe You or Your Users are in breach of this Agreement or are otherwise using or accessing the Services inconsistent with the terms of this Agreement.
13.3. Termination for Breach or Insolvency. Each party may, upon written notice to the other party, terminate this Agreement if (i) such party is in material breach of this Agreement and fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice; or (ii) such party becomes subject to a petition in bankruptcy, has a receiver appointed for it, makes an assignment for the benefit of creditors, or is involved in any other proceeding relating to solvency, liquidation, or receivership.
13.4. Effect of Termination. Effective upon termination hereof, You shall: immediately make all payments and perform any other obligations of You arising hereunder within thirty (30) days of termination; immediately cease to access, use and/or permit to use the Services in any manner whatsoever; and as directed at Our sole option, immediately destroy or return all copies of the Services including all electronically stored copies thereof and backup copies and related materials and any Our Confidential Information in Your possession, with an affidavit of You or Your senior officer attesting to completion of this task. Termination hereunder shall be without prejudice to any other right or remedy to which either party may be entitled hereunder in law. The obligations set out in Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, and 14 hereof shall survive the termination or expiration of this Agreement. After termination, We will have no further obligation to You, specifically We will not be required to retain any data related to, nor will We be required to verify and course completions of training completed by You or Your employees during the subscription period.
14.1. ASSIGNMENT. The rights granted to You are personal and You may not transfer, assign, or otherwise dispose of this Agreement, or any of its rights or obligations under this Agreement without Our prior written consent. The parties agree and anticipate that We may fulfill Our obligations under this Agreement (either partially or completely) through the efforts of, or by contract with, third parties. Any attempted assignment in violation of this Section will be null and void.
14.2. RELATIONSHIP. This Agreement is entered between separate entities and neither is the agent of the other for any purpose whatsoever. The parties are independent contractors and neither has any power nor will it represent itself as having any power to in any way bind or obligate the other or to assume or create any expressed or implied obligation or responsibility on behalf of the other or in other’s name, and neither party shall have authority to represent itself as agent of the other. This Agreement shall not be construed as constituting the parties as partners or to create any other form of legal association which would impose liability upon one party for the act or failure to act of the other.
14.3. WAVIER. The failure of Us to exercise or enforce any right or provision of the Agreement shall not constitute a waiver of such right or provision. The Agreement constitutes the entire agreement between You and Us and govern your use of the Service, superseding any prior agreements between You and Us (including, but not limited to, any prior versions of the Agreement).
14.4. ENTIRE AGREEMENT. This Agreement, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
14.5. NOTICES. Any notice regarding terms and conditions of this Agreement, to be given to any of all of the parties hereunder shall be in writing and may be given by delivering the same to, in Your case, the email address on file with Us for You and in Our case to: SafetyVantage, Attn: CEO, SafetyVantage Inc., 305-4625 Varsity Dr NW, Suite 342, Calgary, Alberta, T3A 0Z9. Any such notice shall be delivered, if to Us, by certified mail (return receipt requested), by messenger or by hand or if to You, by e-mail provided evidence of transmission if produced at point of origination. Any such notice shall be deemed to have been given on the date on which it was delivered if delivered by hand, messenger or e-mail and on the fifth (5th) Business Day following posting if given by certified mail. In the case of postal disruption, all notices pursuant to this section are to be delivered by messenger, hand or e-mail but not certified mail. Any party hereto may change its address for service from time to time by notice given to the other parties hereto in accordance with the foregoing.
14.6. ENGLISH LANGUAGE. We and You have required that this Agreement and all documents related to this Agreement be drawn up in English. For Licencees resident in Quebec, France and other francophone jurisdictions: SafetyVantage et Licencee ont demandé expressément qua la présente entente et tous les document et avis connexes soient rédigés en anglais.
14.7. MARKETING PERMISSIONS. By purchasing the Service, you hereby agree to allow Us to use Your company name and logo for marketing purposes, permitted uses include and are not limited to: Customer listing, Company Logo on Our website, Your name mentioned with client win announcements.
14.8. APPLICABLE LAW. This Agreement shall be governed by and construed in accordance to the laws applicable in the Province of Alberta, Canada, without giving effect to the principles of conflicts of law and excluding that body of law applicable to choice of law. Except where We are seeking equitable relief, any claim or court proceeding brought by a party in relation with this Agreement may be presented exclusively in the City of Calgary of the Province of Alberta, Canada. You agree that, except where We are seeking equitable relief, the courts of the City of Calgary of the Province of Alberta, Canada constitute the appropriate and exclusive forum for any claim or court proceeding in relation with this Agreement and You submit to the exclusive jurisdiction of such courts. EACH PARTY HEREBY KNOWINGLY WAIVES ANY RIGHT TO JURY TRIAL IN CONNECTION WITH ANY ACTION OR LITIGATION IN ANY WAY ARISING OUT OF OR RELATED TO THIS AGREEMENT. PURSUANT TO ARTICLE 6 OF THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS (“UN CONVENTION”), YOU AND WE AGREE THAT THE UN CONVENTION WILL NOT APPLY TO THIS AGREEMENT.
If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Agreement remain in full force and effect.
14.9. FORCE MAJEURE. Neither party will be responsible for failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; electrical, internet, or telecommunication outage that is not caused by the obligated party; government restrictions; or other event outside the reasonable control of the obligated party. Each party will use reasonable efforts to mitigate the effect of a force majeure event.
14.10. SECTION HEADINGS. Section headings in this Agreement is for convenience only and have no legal or contractual effect.