MASTER SOFTWARE AS A SERVICE AGREEMENT
Last Modified: September 28, 2022
MASTER SOFTWARE AS A SERVICE AGREEMENT
This Master Software as a Service Agreement is made by and between Safeco, Inc., dba Safety Plus, whose address is 3725 Airport Blvd Suite 208-B, Mobile, AL 36608 (the “Service Provider”), and the client (“Client”) described in the Order Form executed in connection herewith, which is incorporated herein by reference (“Order Form,” and , together with this Master Software as a Service Agreement, Order Form the “Agreement”). Client and Service Provider are each referred to herein individually as a “Party,” and collectively as the “Parties.” Client acknowledges and agrees that it has read, understands, and agrees to be bound by the terms and conditions of this Agreement. In the event of a conflict between the terms of the Order Form and this Agreement, Order Form shall control.
Service Provider may revise and update this Agreement from time to time. Service Provider shall make commercially reasonable efforts to provide notice of material changes in accordance with applicable law, but all changes are effective immediately. Client’s continued use of the Services following the posting of a revised version of this Agreement constitutes Client’s agreement to such changes.
- “Aggregated Statistics” means data and information related to Client’s and its Authorized Users’ use of the Services that is used by Service Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services;
- “Authorized User” means Client’s employees and agents (i) who are authorized by Client to access and use the Services under the rights granted to Client pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder;
- “Client Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Client or an Authorized User through the Services;
- “Documentation” means Service Provider’s user manuals, handbooks, and/or guides relating to the Services provided by Service Provider to Client, either electronically or in hard copy form, and end user documentation relating to the Services;
- “Downtime Report” means a report provided by Service Provider to Client upon request specifying the number of minutes the Services were Unavailable during the immediately prior monthly billing cycle;
- “Monthly Fees” means the Fees payable by Client on a monthly billing cycle and do not include one-time charges;
- “Monthly Uptime Percentage” means the amount of time the Services are actually available for use by Client during the applicable monthly billing cycle;
- “Service Credit” means a credit against the Monthly Fees payable for an applicable monthly billing cycle; and
- “Service Provider IP” means the Services, the Documentation, and any and all information, data, documents, materials, content, methods, process, hardware, software, technology and intellectual property provided to Client or any Authorized User or otherwise created or developed by Service Provider in connection with the foregoing. For the avoidance of doubt, Service Provider IP includes Aggregated Statistics and any information, data, or other content derived from Service Provider’s monitoring of Client’s access to or use of the Services, but does not include Client Data;
- “Services” means the SafetyPlusWeb services, as further described in Order Form.
- “Third-Party Products” means the third-party products, software or services, if any, that are provided with or incorporated into the Services; and
- “Unavailable” means that the Services are not available for use by Client.
- Access and Use. Subject to and conditioned on the compliance of Client and its Users (as defined below) with the terms and conditions of this Agreement, Service Provider hereby grants to Client, during the term of this Agreement, a non-exclusive, non-sublicensable and non-transferable right to access and use the Services solely for Client’s internal business purposes. Service Provider shall provide to Client the necessary passwords and network links or connections to allow Client to access the Services.
- Client Responsibilities. Client is responsible for maintaining the confidentiality of login IDs, passwords, and any additional information regarding access to the accounts of Client and its Authorized Users. If Client knowingly shares login IDs and passwords with another person who is not authorized to use the Services, this Agreement is subject to termination for cause. Client agrees to immediately notify Service Provider of any unauthorized use of login IDs, passwords, or account or any other breach of security. Client is responsible and liable for all uses of the Services and Documentation resulting from access provided by Client, directly or indirectly, regardless of whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Client is liable for all acts and omissions of its Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Client will be deemed a breach of this Agreement by Client. Client shall make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services and shall cause its Authorized Users to comply with such provisions. Documentation License. Subject to the terms and conditions contained in this Agreement, during the term of this Agreement, Service Provider hereby grants to Client a non-exclusive, non-sublicensable, and non-transferable license to use the Documentation solely for Client’s internal business purposes in connection with its use of the Services.
- Use Restrictions. Client shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Client shall not at any time, directly or indirectly, and shall not permit any Authorized Users or any other third party to: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party, or that violates any applicable law; or (vi) access or use the Services for purposes of competitive analysis of the Services, the development, provision or use of a competing software service or product or any other purpose that is to Service Provider’s detriment or commercial disadvantage. Client further agrees not to access (or attempt to access) the Services through any automated means (including use of scripts or web crawlers).
- Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Service Provider may monitor Client’s use of the Services and collect and compile Aggregated Statistics. As between Service Provider and Client, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by Service Provider. Client acknowledges that Service Provider may compile Aggregated Statistics based on Client Data input into the Services. Client agrees that Service Provider may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in any manner permitted under applicable law.
- Third Party Products. Service Provider may from time to time make Third-Party Products available to Client. Such Third-Party Products are subject to their own terms and conditions. If Client does not agree to abide by the applicable terms for any such Third-Party Products, then Client should not install or use such Third-Party Products. Service Provider shall have no liability in connection with Client’s use of any Third-Party Products. Without limiting the generality of the foregoing, Client acknowledges and agrees that it has read, understands and expressly agrees to be bound by the terms and conditions of the Master Service Agreement Governing Safeco, Inc. Customer Usage of Jotform, available HERE (“Jotform User Agreement”).
Client acknowledges that, as between Client and Service Provider, Service Provider retains all right, title, and interest, including all intellectual property rights, in and to the Service Provider IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products. In the event that Client acquires any right, title or interest in or to any Service Provider IP or Aggregated Statistics, by operation of law or otherwise, Client hereby irrevocably assigns all such right, title and interest to Service Provider.Service Provider acknowledges that, as between Service Provider and Client, Client owns all right, title, and interest, including all intellectual property rights, in and to the Client Data. Client hereby grants to Service Provider, during the term of this Agreement, a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client Data and perform all acts with respect to the Client Data as may be necessary for Service Provider to provide the Services to Client, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client Data incorporated within the Aggregated Statistics for any business purpose.
If Client or any of its employees or contractors sends or transmits any communications or materials to Service Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Service Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), Service Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Client hereby irrevocably assigns to Service Provider on Client’s behalf, and on behalf of its employees, contractors, agents and/or Authorized Users, all right, title, and interest therein, and Service Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Service Provider is not required to use any Feedback.
Service Provider reserves all rights not expressly granted to Client in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Client or any third party any intellectual property rights or other right, title, or interest in or to the Service Provider IP or any Third Party Products.
- Suspension and Termination. Notwithstanding anything to the contrary in this Agreement, Service Provider may temporarily suspend Client’s and any Authorized User’s access to any portion or all of the Services if Service Provider reasonably determines that (a) there is a threat or attack on any of the Service Provider IP; (b) Client’s or any Authorized User’s use of the Service Provider IP disrupts or poses a security risk to the Service Provider IP or to any other client or vendor of Service Provider; (c) Client, or any Authorized User, is using the Service Provider IP for fraudulent or illegal activities; (d) subject to applicable law, Client has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; (e) Service Provider’s provision of the Services to Client or any Authorized User is prohibited by applicable law; (f) any vendor of Service Provider has suspended or terminated Service Provider’s access to or use of any Third Party Products required to enable Client to access or use the Services; (g) in the event of Client’s failure to pay any amounts hereunder when due; or (h) in the event that Client is in breach of this Agreement (each, a “Service Suspension”). Service Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to Client and to provide updates regarding resumption of access to the Services following any Service Suspension. Service Provider shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Service Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Client or any Authorized User may incur as a result of a Service Suspension.
- Subscription Fees. Client agrees to pay the implementation, subscription and other fees as specified in the Order Form or as later mutually agreed to by the Parties in writing (“Fees”). Payment of Fees shall be made via check or bank transfer due upon receipt of a valid invoice, or via a monthly credit card charge, and without offset or deduction. Fees are non-refundable. If Client fails to make any payment when due, without limiting Service Provider’s other rights and remedies: (a) Service Provider may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (b) Client shall reimburse Service Provider for all costs incurred by Service Provider in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees. Service Provider may adjust the Fees annually, by written notice to Client, provided that any increase in the Fees shall not exceed the trailing twelve (12) month average increase in the Consumer Price Index as published by the United States Department of Labor Bureau of Labor StatisticsAll Fees and other amounts payable by Client under this Agreement are exclusive of taxes and similar assessments. Client is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on Service Provider’s income.When an Authorized User is added or deleted by Client, the Fees shall be adjusted accordingly. Additional Authorized Users may be added or removed by Client at any time provided that Client shall be required to pay for each additional Authorized User on the terms set forth in the Order Form for the period of time during which each such Authorized User is active. Service Provider shall maintain a uniform mechanism for auditing Client Authorized User counts. Count records are available upon request. Notwithstanding anything to the contrary herein, regardless of the actual Authorized User count, the Fees shall at all times be subject to the minimum usage guarantee set forth in the Order Form (“Minimum Usage Guarantee”) and shall not fall below the Minimum Usage Guarantee amount.
- Warranty Disclaimer. THE SERVICES AND SERVICE PROVIDER IP ARE PROVIDED “AS IS”, “WHERE IS”, AND “AS AVAILABLE” AND SERVICE PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. SERVICE PROVIDER SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. SERVICE PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, SERVICE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Service Provider will use commercially reasonable efforts to make the Services available with a Monthly Uptime Percentage of at least 99.9% during any monthly billing cycle. In the event that the Services are Unavailable during an applicable monthly billing cycle for greater than 45 minutes, but less than 120 minutes (in the aggregate), a Service Credit in the amount of 5% of the Monthly Fees for such monthly billing cycle will be awarded to Client. For any instance in which the Services are Unavailable for 120 minutes or more during an applicable monthly billing cycle, a Service Credit in the amount of 10% of the Monthly Fees for such monthly billing cycle will be awarded. Service Credits are applied only against future payments of Monthly Fees otherwise due from Client, and will not entitle Client to any refund or other payment from Service Provider. Service Credits may not be transferred or applied to any other account.To receive a Service Credit, Client must submit a claim by emailing a Service Provider Service Representative within forty-five (45) days following delivery of the applicable Downtime Report. Upon receipt of an accurate credit request based on the applicable Downtime Report, Service Provider will issue the applicable Service Credit to Client within one billing cycle following the month in which Client’s request is confirmed by Service Provider. Client’s failure to timely provide the request and other information as required above will waive any claim to a Service Credit. This Section sets forth Client’s sole and exclusive remedies, and Service Provider’s sole and exclusive liability, for any Unavailability. Any period during which the Services are Unavailable due to, in whole or in part: (i) factors outside of Service Provider’s reasonable control, including any force majeure event or Internet access or related problems beyond the demarcation point of the Services; (ii) any actions or inactions of Client or any third party; (iii) Client’s equipment, software or other technology and/or any third party equipment, software or other technology; (iv) Service Provider’s suspension or termination of Client’s right to use the Services in accordance with this Agreement; (v) failure, interruption, outage or other problem with any software, hardware, system, network, facility or other matter not supplied by Service Provider pursuant to this Agreement; or (vi) scheduled downtime or maintenance, shall not be counted with respect to the determination of whether a Service Credit is available.
Service Provider shall indemnify, defend, and hold harmless Client, its affiliates and their officers, directors, employees and agents from and against any and all losses, damages, liabilities, costs and expenses (including attorneys’ fees and expenses) (“Losses”) incurred by Client resulting from any third-party claim, suit, action, or proceeding (“Third-Party Claim”) that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s US intellectual property rights/US patents, copyrights, or trade secrets, provided that Client promptly notifies Service Provider in writing of the claim, cooperates with Service Provider, and allows Service Provider sole authority to control the defense and settlement of such claim. If such a claim is made or appears possible, Client agrees to permit Service Provider, at Service Provider’s sole discretion, to: (a) modify or replace the Services, or component or part thereof, to make it non-infringing, or (b) obtain the right for Client to continue use. If Service Provider determines that neither alternative is reasonably available, Service Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Client. This Section will not apply to the extent that the alleged infringement arises from: (i) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Service Provider or authorized by Service Provider in writing; (ii) modifications to the Services not made by Service Provider; (iii) Client Data; (iv) Third-Party Products; or (v) Client’s failure to timely implement any modifications, upgrades, replacements or enhancements made available to Client by or on behalf of Service Provider. The remedies set forth in this Section shall be Client’s sole remedies and Service Provider’s exclusive liability for any Third-Party Claim arising out of infringement or misappropriation of intellectual property rights caused by the Services. Client shall indemnify, hold harmless, and, at Service Provider’s option, defend Service Provider, its affiliates and their officers, directors, employees and agents from and against any Losses resulting from any Third-Party Claim that the Client Data, or any use of the Client Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property or privacy rights and any Third-Party Claims based on Client’s or any Authorized User’s: (a) negligence or willful misconduct; (b) use of the Services in a manner not authorized by this Agreement; (c) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Service Provider; or (d) modifications to the Services not made by Service Provider, provided that Client may not settle any Third-Party Claim against Service Provider unless Service Provider consents in writing to such settlement, and further provided that Service Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
- Limitation of Liability. IN NO EVENT WILL SERVICE PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) direct, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SERVICE PROVIDER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL SERVICE PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID BY COMPANY TO SERVICE PROVIDER UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
- Confidential Information. From time to time during the term of this Agreement, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder, or use the disclosing Party’s Confidential Information for any purpose other than the performance of this Agreement. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire three (3) years from the date of termination of this Agreement; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.
Client hereby grants to Service Provider a perpetual, irrevocable, worldwide and royalty-free license to use Client’s name and logo in promotional materials advertising Client’s use of SafetyPlusWeb™.
- Export Control. Service Provider’s Services use software and technology that may be subject to United States export controls administered by the U.S. Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, and other U.S. agencies and the export control regulations of Switzerland and the European Union. Client acknowledges and agrees that the Services shall not be used in, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to, countries to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice.
Client shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of Client’s link to the Internet and to protect against any unauthorized access to or use of the Services. Service Provider shall not be liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement. Client agrees that Service Provider shall not, under any circumstances, be held responsible or liable for situations: (a) where data or transmissions are accessed by third parties through illegal or illicit means, or (b) where the data or transmissions are accessed through the exploitation of security gaps or weaknesses by a third party. Service Provider will promptly report to Client any unauthorized access to Client Data promptly upon discovery and verification, and Service Provider will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access, at Service Provider’s expense.
- Term and Termination.
The term of this Agreement begins on the Effective Date and, unless terminated earlier pursuant to this Agreement’s express provisions, will continue in effect for the term set forth in the Order Form. Upon expiration of the initial term, this Agreement shall automatically renew for additional subsequent terms of the same duration unless either Party gives written notice of non-renewal to the other Party thirty (30) days prior to the date of expiration of the then-current term. Notwithstanding anything to the contrary herein, this Agreement may be terminated:
(a) by Service Provider, effective on written notice to Client, if Client: (i) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Service Provider’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 5 or Section 8 of this Agreement;
(b) by either Party, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(c) by either Party, effective immediately upon written notice to the other Party, if the other Party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(d) by either Party, without cause, by thirty (30) days prior written notice to the other Party; provided that in the event that Client terminates this Agreement pursuant to this Section 19(d), Client shall pay to Service Provider, on or before the effective date of termination, all Fees due for the remainder of the then-current term. Upon expiration or earlier termination of this Agreement, all rights, licenses consents and authorizations granted to Client hereunder will immediately terminate, Client shall immediately discontinue use of the Services and Service Provider IP and, without limiting Client’s obligations under Section 8, Client shall delete, destroy, or return all copies of the Service Provider IP and certify in writing to the Service Provider that the Service Provider IP has been deleted or destroyed. No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund. This Section and Sections 5, 6, 8, 11, 13, 14, 15, 16, 19, 21, 22, 26 and 28 survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
All notices pertaining to this Agreement shall be in writing and shall be transmitted either by personal hand delivery, by a reputable commercial overnight courier, or mailed by registered or certified United States mail, return receipt requested, postage prepaid, and addressed to the addressee at its address set forth in the introductory paragraph of this Agreement, unless written notice of change of address is given.
In the event of a dispute or conflict arising out of this Agreement, the Services or Service Provider IP, both parties agree to submit such dispute or conflict to binding arbitration in accordance with the Federal Arbitration Act and the laws of the State of Delaware. Prior to a Party initiating an arbitration proceeding, it shall notify the other party of its intent to do so and the claim to be made in connection therewith, and executives of each Party shall endeavor in good faith to resolve the matter for at least thirty days (or such shorter period as the Parties may mutually agree). Subject to a Party’s right to appeal, judgment on any arbitration award may be entered in any court having jurisdiction. Notwithstanding the foregoing, if a Party will suffer irreparable harm and injury for which monetary damages are not sufficient, such Party shall be entitled to seek temporary and permanent restraining orders, injunctions, and/or other equitable relief, without any requirement of posting a bond or other security and without resort to arbitration.
- Jurisdiction and Venue; Applicable Law. The validity, interpretation and performance of this Agreement shall be controlled by and construed under the laws of the State of Delaware to the exclusion of the law of any other forum, without regard to its choice of law provisions. Any action to enforce this Agreement shall be instituted solely and exclusively in the Circuit Court of Mobile County, Alabama or in the United States District Court for the Southern District of Alabama.
- If any provision of this Agreement where the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provision to the other persons or circumstances shall not be affected thereby and shall be enforced to the greatest extent permitted by applicable law.
- Force Majeure. Service Provider shall not be liable for damages for any delay or failure of performance arising out of causes beyond Service Provider’s reasonable control, including, but not limited to, Acts of God, acts of civil or military authority, fires, riots, wars, embargoes, Internet disruptions, hacker attacks, or communications failures, pandemic, government order, law or action, flood, fire, earthquake or natural disasters, and national or regional emergencies.
- Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Service Provider. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
- Decisions and Allocation of Risk. It is understood and agreed that the Services may include information and recommendations, but all decisions in connection with the implementation of such information and recommendations shall be the responsibility of, and made solely by, the Client. The Service Provider does not warrant against liability, defects or completeness or make any representations regarding the usefulness, accuracy, or completeness of any online training, documents, materials, deliverables or other information provided to Client by or through the Services. The accuracy, adequacy, completeness, legality, reliability, and usefulness of any online training, materials, documents, information or deliverables of the Services is relied on at the sole and complete discretion of the Client, and Client should supplement the Services in this Agreement if it deems it appropriate to meet its particular needs or requirements. The Services, deliverables, software, programs, documents, online training, information and materials provided to Client under this Agreement are designed to be but a part of Client’s overall effort in meeting Client’s internal business purposes related to a wide variety of areas. The determinations necessary to ensure that Client’s work conditions are safe, and Client’s employees understand how to safely handle site-specific and operational hazards, are the sole responsibility of Client, and Service Provider’s assistance in these areas are expressly not warranted against defects of any kind. Due to the various industries and businesses that the Service Provider serves, the numerous laws, regulations, standards, restrictions, and mandates that may differ with each, and the fact that Client maintains complete operational control over its worksites, the Service Provider will not be responsible for any fines, penalties, or other judgments against Client resulting from lack of compliance or completeness of any online training, documents, materials, deliverables or other information provided to Client by or through the Services. Client agrees to hold harmless, indemnify, and defend the Service Provider and its directors, officers, employees and shareholders from and against all claims, demands, liabilities, damages, losses, costs, and expenses, including attorneys’ fees and expenses, and the costs of investigation asserted against, incurred by or imposed upon the Service Provider associated with the Company’s access to and use of the Services.
- Independent Contractor. Client and the Service Provider agree that the Service Provider will act as an independent contractor in the performance of its Services under this Agreement. Accordingly, the Service Provider is responsible for the compensation and supervision of its own employees used to perform the Services and shall be responsible for payment of all taxes including Federal, State and local taxes arising out of the Service Provider’s activities and all payments to the Service Provider under this Agreement. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or any other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither Party shall have authority to bind the other in any manner whatsoever
- Equitable Relief. Client acknowledges and agrees that a breach or threatened breach by Client of any of its obligations under Sections 5 or 8 would cause Service Provider irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, Service Provider will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
This Agreement may be executed and delivered by telecopy and in counterparts, each of which when executed and delivered shall be deemed an original, but all of which together shall be deemed one and the same agreement.