- General. The Service, consisting of online access to certain application software (including IndustrySafe’s proprietary software IndustrySafe®), content and/or other information, and other content owned or licensed by IndustrySafe, is provided by IndustrySafe and located at an IndustrySafe supplied Internet Address (the "Site"). As part of the Service, IndustrySafe will provide Customer with use of the Service through a standard browser interface, along with data encryption for sensitive data, transmission, access and storage. The Service may be upgraded and enhanced by IndustrySafe from time to time, and Customer shall be required to access and use the latest version of the Service made available by IndustrySafe. Customer’s use of the Service constitutes acceptance of the terms of this Agreement.
- Restricted License. Subject to the terms and conditions of this Agreement, IndustrySafe hereby grants to Customer (and Customer accepts) a non-exclusive, non-transferable license to access and use the Service for the number of “Users” allocated via the ordering process. Rights not expressly granted to Customer are hereby reserved by IndustrySafe. Customer agrees (a) to abide by this Agreement and any and all attached or referenced policies; and (b) to keep Customer authorized IndustrySafe account ("Account") information confidential, including Customer password, username and any other information related to the Service ("Account Information"), and to inform IndustrySafe promptly upon the unintended and/or undesired disclosure of any portion of such Account Information.
- Intellectual Property Rights. It is hereby understood and agreed that as between IndustrySafe and Customer, IndustrySafe is the owner of all rights, title and interest, including all Intellectual Property Rights (as defined below) to the Service, the Site, and all “Feedback”, meaning any comments, suggestions, ideas, graphics, questions or other information (excluding Customer Data as defined in Section 6) submitted by Customer through the Site or the Service. Customer hereby assigns all right, title and interest in the Feedback to IndustrySafe. IndustrySafe shall be entitled to use such Feedback for any commercial or other purpose whatsoever without compensation to Customer or anyone else. Customer hereby warrants that no Feedback shall violate any Intellectual Property Right of any third party. For the purposes of this Agreement, "Intellectual Property Rights" shall mean any and all of the following: (a) rights associated with works of authorship throughout the universe, including but not limited to copyrights; (b) trademark and trade name rights and similar rights; (c) trade secret rights; (d) invention rights, patents, designs, algorithms and other industrial property rights; (e) all other intellectual and industrial property rights (of every kind and nature throughout the universe and however designated, including, but not limited to logos, "rental" rights, rights of publicity, and rights to remuneration), whether arising by operation of law, contract, license, or otherwise; and (f) all registrations, initial applications, renewals, extensions, continuations, divisions or reissues hereof now or hereafter in force (including any rights in any of the foregoing).
- Rights to Service. Except as expressly provided herein, Customer does not acquire any rights to the Service through the purchase of licenses to the Service or the Site. Customer may not reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code (i.e., the human-readable form of any computer programming code) ("Source Code") of the components of the Service, or create derivative works based thereon. Customer also may not download, republish, reproduce, copy, post, transmit, or in any way distribute any material from the Site unless such activities are in direct furtherance of Customer’s permitted use of the Service and do not in any way violate this Agreement. Customer is not permitted to: (a) rent, lease, assign or transfer all or any part of the Service and/or Customer Account Information to any person or entity without the prior written consent of IndustrySafe; (b) remove any proprietary notices, labels, or marks on any component of the Service (or the Service or Site generally), whether in machine language or Source Code; (c) use the Service to provide a service bureau by which the Service can be accessed by third parties or by which information produced pursuant to the Service is sold or given to third parties; or (d) sublicense, assign, delegate or otherwise transfer this license or any of the related rights or obligations for any reason without the prior written consent of IndustrySafe (any attempt to sublicense, assign, delegate or transfer this license, either by contract, statute, corporate merger of any sort, regulation or court order, without the prior written consent of IndustrySafe shall be void able at IndustrySafe's sole and absolute discretion). Failure to comply with these restrictions will result in automatic termination of this Agreement.
- Privacy The Service is hosted in the United States and all Customer data is stored and processed solely in the United States in accordance with United States data privacy and security laws. If Customer exports or imports any of its data to or from the United States or to or from any other country using the Service, it is solely responsible for complying with any applicable data privacy or security laws. Except as otherwise required by law, IndustrySafe will not disclose to any third parties any Customer Data or confidential information about Customer’s use of the Service.
- Account Information and Data. Customer is the owner of all data it submits to the Service (“Customer Data”) and IndustrySafe will, as set forth herein, provide the Customer Data to Customer at the termination of this Agreement. IndustrySafe will keep confidential any Customer Data entered into the system by Customer and will not, except as required by law, disclose any of the Customer Data entered into the system to a third party without explicit written permission by Customer. Notwithstanding the foregoing, IndustrySafe may use the Customer Data in deidentified, aggregate form for its own business purposes during and after the term of this Agreement. Upon termination of the Service, and upon the written request of Customer, IndustrySafe will make available to Customer an electronic file of Customer Data within 30 days of termination. IndustrySafe reserves the right to withhold, remove and/or discard Customer Data without notice for any breach of this Agreement that remains uncured for 10 days after Customer’s receipt of notice, including, without limitation Customer non-payment.
- Payment of Fees; Taxes. Customer will pay for the Services in accordance with the fee schedule in the online ordering form. Fees, both during the Initial Term, as well as any Renewal Terms, shall be increased by 3.0% per year. Changes in user counts will be reflected in the annual contract amount from that period forward for all users.
All fees due under this Agreement must be paid in United States Dollars. IndustrySafe will invoice Customer in advance pursuant to the Payment Terms in the online ordering form. All invoices are payable 30 days after invoice date. All fees collected by IndustrySafe under this Agreement are fully earned when due and nonrefundable when paid
If Customer believes billing is incorrect, Customer must contact IndustrySafe in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
Customer may add licenses by executing an additional written Order Form or using the Online ordering process. Added licenses will be subject to the following: (i) added licenses will be coterminous with the preexisting Term (either Initial Term or renewal term); (ii) the license fee for the added licenses will be the then current, license fee; and (iii) licenses added in the middle of a billing month will be charged in full for that billing month.
Customer shall, in addition to the fees required hereunder, pay all applicable sales, use, transfer or other taxes and all duties, whether international, national, state or local, however designated, which are levied or imposed by reason of the transaction(s) contemplated hereby, and Customer authorizes IndustrySafe to, at its option, invoice Customer for any such taxes that are due or may become due, excluding, however, income taxes on net profits which may be levied against IndustrySafe.
Non-Payment and Suspension. Any fees unpaid for more than ten (10) days past the due date shall bear interest at 1.5% per month. In addition to any other rights granted to IndustrySafe herein, IndustrySafe reserves the right to suspend or terminate this Agreement and Customer access to the Service if the Customer’s account becomes delinquent. Customer will continue to be charged for User licenses during any period of suspension. If Customer or IndustrySafe initiates termination of this Agreement, Customer will be obligated to pay the balance due on the Customer’s account computed in accordance with the Charges and Payment of Fees section above. Customer agrees that IndustrySafe may charge such unpaid fees to Customer’s credit card or otherwise bill for such unpaid fees.
IndustrySafe reserves the right to impose a reconnection fee in the event of suspension and the Customer thereafter requests access to the Service. Customer agrees and acknowledges that Customer Data may be irretrievably deleted if the Customer’s account is 30 days or more delinquent.
Term. The term of this Agreement shall commence on the ordering date, and will remain in full force and effect for the initial term (“Initial Term”) indicated in the online ordering process. Upon expiration of the Initial Term, this Agreement shall automatically renew under the same terms and conditions, unless written notice is given by either party of its intent to terminate the Agreement, at least sixty (60) days prior to the scheduled termination date. Upon expiration or early termination of this Agreement by either party for any reason, Customer shall immediately discontinue all use of the Services and documentation, and Customer acknowledges that IndustrySafe will terminate Customer’s ability to access the Service. Notwithstanding, access to the Service may remain active for thirty (30) days solely for purpose of IndustrySafe’ record keeping (the “Expiration Period”). Any access to or usage of the Service following the Expiration Period shall be deemed Customer’s renewal of the Agreement under the same terms and conditions.
IndustrySafe shall have the right to immediately terminate Customer access and use of the Site, or any portion of the Site, in the event of any breach by Customer of this Agreement and failure to cure such breach within 10 days of receipt of written notice.
Equipment Operation. Customer is solely responsible for acquiring and maintaining all computer hardware and software, telephone, and other equipment, and all communications and other services needed for access to and use of the Service.
Trademarks. The terms IndustrySafe and the IndustrySafe logo are trademarks or service marks IndustrySafe. Nothing contained in the Site should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any trademark displayed on the Site without prior written permission of IndustrySafe.
Hyperlinked Material. The Site may contain hyperlinks to other sites on the Internet which are not owned or controlled by IndustrySafe. IndustrySafe cannot assume any responsibility for any material on such sites, or any other material outside of the Site, which is accessed directly or indirectly by any such hyperlink.
Security and Data Storage. Customer shall not permit or allow other persons to have access to or to use Customer Account Information other than Customer employees, consultants or agents who have been notified of the restrictions set forth in this Agreement, absent IndustrySafe's prior express written consent. Customer agrees to maintain the confidentiality of all of Customer Account Information and agree to be primarily responsible for all activity pursuant to Customer Account.
Limitation of Liability. Customer specifically agrees that IndustrySafe shall not be responsible for the unauthorized access to or alteration of customer transmission(s) or data, any material or data sent or received or not sent or received, any transmission(s) entered through the Service, any expenses, damages or injury caused by any failure of performance, error, omissions, interruption, deletion, defect, delay in operation or transmission, computer virus, communication line failure, theft or destruction or use of record, whether for breach of contract, strict liability, tortious behavior, negligence, or for any other cause of action. Customer also agrees that IndustrySafe is not responsible for any threatening, defamatory, obscene, offensive or illegal content or conduct of any third party or any infringement by Customer of another's rights, including Intellectual Property Rights. Customer shall indemnify, defend and hold IndustrySafe harmless against any claims that may arise as a result of these matters.
Customer acknowledges that the operation and availability of the communications systems, including, without limitation, telephone service, computer networks and the Internet, used for accessing and interacting with the Service can be unpredictable and may, from time to time, interfere with or prevent access to or operation of the Service. Customer acknowledges that IndustrySafe is not responsible for any such interference with or prevention of Customer use of or access to the Service.
The aggregate liability of IndustrySafe and anyone else who has been involved in the creation, production, or delivery of the Service nevertheless shall be limited to the amount paid by Customer to IndustrySafe for the Service during the 12 months preceding the event giving rise to liability minus fees for implementation, development and customization.
IN NO EVENT WILL INDUSTRYSAFE BE LIABLE TO CUSTOMER FOR ANY DAMAGES, INCLUDING ANY LOST PROFITS, BUSINESS INTERRUPTION, LOST SAVINGS, LOSS OF BUSINESS INFORMATION OR OTHER INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE OR INABILITY TO USE THE SERVICE EVEN IF INDUSTRYSAFE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOR SHALL INDUSTRYSAFE BE RESPONSIBLE FOR ANY CLAIM BY ANY OTHER PARTY ARISING FROM OR RELATED TO THE SERVICE. CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR UNAVAILABILITY OF THE SERVICE OR SITE SHALL BE LIMITED TO THE REMEDY SET FORTH IN INDUSTRYSAFE’S SERVICE LEVEL AGREEMENT, A COPY OF WHICH CAN BE FOUND AT industrysafe.com/service_level_agreement
If any provision of this Agreement shall be determined to be invalid or otherwise unenforceable, the enforceability of the remaining provisions shall not be impaired thereby. The failure of IndustrySafe to exercise any right provided for herein shall not be deemed a waiver of any right hereunder.
- Indemnification by Customer. Customer agrees to defend, indemnify and hold harmless IndustrySafe, and its respective affiliates, officers, directors, employees, consultants, agents, licensees and licensors from any claim, demand, or damages, including reasonable attorneys' fees, asserted by any third party due to, arising out of, or in any way related to, the improper or negligent use of the Service under Customer Account. As used in this Agreement, "affiliate" means any entity which controls, is controlled by, or is under common control with the named entity.
- Equitable Relief. Customer acknowledges that, at the time this Agreement is entered, it would be impossible or inadequate to measure and calculate all of IndustrySafe's damages for the breach of certain provisions of this Agreement and that it would require a court of competent jurisdiction to ascertain IndustrySafe's damages. Accordingly, if Customer breaches or threatens to breach any of Customer’s obligations, IndustrySafe shall be entitled, without showing or proving any actual damage sustained, to a stipulated temporary restraining order, and shall thereafter be entitled to apply for a preliminary injunction, permanent injunction, and/or order compelling specific performance, to prevent the breach of Customer obligations under this Agreement. Nothing in this Agreement shall be interpreted as prohibiting IndustrySafe from pursuing or obtaining any other remedies as otherwise available to it for such actual or threatened breach, including recovery of damages.
- Governing Law/Jurisdiction; Dispute Resolution. This Agreement shall be governed by and construed under the laws of the Commonwealth of Pennsylvania, without reference to principles of conflict of laws, and any action brought by the Parties to enforce or interpret any provision of this Agreement shall be brought exclusively in an appropriate state court or federal court in Philadelphia, Pennsylvania. The Parties hereby consent to such jurisdiction and waive any objection to such venue. Before commencing any claim against the other Party, each Party shall use good faith, reasonable efforts to resolve the dispute amicably through discussions between senior level management. The preceding dispute resolution clause shall not apply to any claim for injunctive relief to protect either Party’s Intellectual Property Rights or confidential information.
- Export Regulations. All Content and Services and technical data delivered under this agreement are subject to applicable US and Canadian laws and may be subject to export and import regulations in other countries. Customer agrees to comply strictly with all such laws and regulations and acknowledge that they have the responsibility to obtain such licenses to export, re-export, or import as may be required after delivery.
- Severability. If any provision of this Agreement is found to be contrary to law by a court of competent jurisdiction, such provision shall be of no force or effect; but the remainder of this Agreement shall continue in full force and effect.
- Survival All provisions of this Agreement (including without limitation those pertaining to confidential information, intellectual property ownership, and limitations of liability) that would reasonably be expected to survive expiration or early termination of this Agreement will do so.
- No Third-Party Beneficiaries. The Parties do not intend to confer any right or remedy on any third party under this Agreement.
- Purchase Orders. Customer may issue a purchase order for its convenience only, it being agreed by the Parties that the terms and conditions of this Agreement shall control. Any terms or conditions included in a purchase order or similar document issued by Customer that conflict with the terms and conditions of this Agreement will not apply to or govern the transaction resulting from the purchase order, unless both Parties expressly agree in writing to the particular conflicting term or condition, in which event the agreed term or condition will apply only with respect to that particular purchase order.
- Modifications to Terms. IndustrySafe reserves the right to modify the terms and conditions of its policies relating to the Service at any time, effective upon posting of an updated version of such policies on the Service. Continued use of the Service after any such changes shall constitute consent to such changes.
- Marketing/Customer Reference. Customer agrees to be a reference account for IndustrySafe, specifically, (a) IndustrySafe may use Customer’s name and logo on its website and in its customer lists, marketing collateral and materials, and investor information, and (b) IndustrySafe may issue a press release announcing this transaction with Customer.
- Entire Agreement. This Agreement and its schedules and exhibits represent the entire understanding and agreement between IndustrySafe and Customer, and supersedes all other negotiations, proposals, understandings and representations (written or oral) made by and between IndustrySafe and Customer.
- Precedence. If this Agreement is being signed in conjunction with other documents, in the event of a conflict between the terms of this Agreement and other documents, this Agreement shall control.
- Questions. Please email us at email@example.com with any questions Customer has about these Terms and Conditions.