1. Purpose. This Agreement sets forth the terms and conditions under which OSHIFY agrees to provide certain hosted “software as a service”, OSHIFY Safety Software, (“Platform”) to Authorized Users, and certain Professional Services (“Services”), as further set forth on each order form (“Order Form”) and, if applicable, all other implementation services, customization, documentation, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management.
2. Legally Binding. This is a legally binding contract for the term and total value provided herein. Licensee is permitted to use the OSHIFY Safety Software and/or benefit from OSHIFY’s Services as outlined in the Order Form, whether or not they are included with or a separate agreement from the software use license, for as long as payments are current.
3. Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, OSHIFY shall use commercially reasonable efforts to provide (i) Customer and Authorized Users access to the Platform, and (ii) Customer the Professional Services. Subject to the terms and conditions of this Agreement, during the Term, OSHIFY hereby grants Customer and Authorized Users a non-exclusive, non-sublicensable, worldwide license to access and use each Platform, solely for internal business purposes as set forth herein.
4. Subscription Services. Each applicable Order Form shall specify and further describe the Subscription Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, user limitations, fees, subscription term and other applicable terms and conditions.
5. Professional Services. Each applicable Order Form shall specify and further describe the Professional Services to be provided in accordance with the subscription term, representations and warranties set forth herein, and may, but need not, include, the Professional Services offered, limitations, milestones, fees, term and other applicable terms and conditions.
6. Changes to Platform. OSHIFY may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of OSHIFY’s products or services to its customers, (b) the competitive strength of, or market for, OSHIFY’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
7. Platform Administrative Users. During the configuration and set-up process for the Platform, Customer will identify an administrative user name and password for Customer’s Platform. OSHIFY reserves the right to refuse registration of, or cancel usernames and passwords it deems inappropriate.
8. Platform Authorized Users. Customer may allow such a number of Customer’s employees and/or independent contractors as is indicated on an Order Form to use the applicable Platform on behalf of Customer as “Authorized Users.” Authorized User subscriptions are for designated Authorized Users and cannot be shared or used by more than one Authorized User, but may be reassigned to new Authorized Users replacing former Authorized Users who no longer require ongoing use of theapplicable Platform.
10. Account Responsibility. Customer will be responsible for (i) all uses of any account that Customer has access to, Platform or Services, whether or not Customer has authorized the particular use or user, and regardless of Customer’s knowledge of such use, and (ii) securing its Platform or Services account, passwords (including but not limited to administrative and user passwords) and files. OSHIFY is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
12. Cooperation. Customer shall provide all cooperation and assistance as OSHIFY may reasonably request to enable OSHIFY to exercise its rights and perform its obligations under, and in connection with, this Agreement.
13. Training and Education. Customer shall use commercially reasonable efforts to cause Customer Users to be, at all times, educated and trained in the proper use and operation the Platform and Services such Customer Users utilize, and to ensure that the Platform and Service is used in accordance with applicable manuals, instructions, specifications and documentation provided by OSHIFY from time to time.
14. Customer Systems. Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use each Platform or Service,including modems, hardware, servers, software, operating systems, networking, web servers, 3rd party subscriptions and the like.
15. Software Restrictions. Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to any software, documentation or data related to a Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform, Service or any Software; (iii) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software, Platform or Service. For the avoidance of doubt, Software, Platform and the Services, including all user-visible aspects of the Software, Platform and Services, are the Confidential Information of OSHIFY.
16. Trademarks. Licensor owns all the trademarks, rights, title to copyrights and service marks associated with the OSHIFY Products. Licensor is the owner of processes, patentable or otherwise in the Products as a business method (“Methods”). Licensor hereby grants Licensee a Limited Use License and the right to use the “Works” and “Methods” for the term of this Agreement and under the terms of this Agreement. Any training logos, trademarks, Works or other custom content added by Licensee remains the property of Licensee.
17. Renewal. When the initial term is over, Licensee agrees that the contract will renew at the same agreed upon rate for an additional twelve (12) month term. Charges will commence on the executed contract date and charges are due and payable on the agreed upon payment schedule. If you sell your company, or if your company is acquired by another entity, you agree that this agreement will be assigned to the new or acquiring entity as part of the sale or acquisition. If the agreement is not assigned, then you agree to be personally liable for the remaining balance. By signing this Agreement, you are authorizing OSHIFY to charge your authorized payment method for the monies owed.
18. Default. If the account becomes more than 30 days delinquent, services will be suspended until the account is brought current. We reserve the right and you agree to let us charge the payment method on file for the amount due, in increments of the authorized monthly or annual amount, in order to keep your account current.
19. Cancellation. Thirty (30) days before the end of the term of your contract, you may cancel this contract with 30-days’ written notice so it will not renew. You will still be able to access the content through the end of the term of this contract. It is the responsibility of the Licensee to download all copies of personnel safety records before cancellation of the software. Licensee acknowledges that once an account is cancelled, the records cannot be recovered. Please submit your written request for cancellation to email@example.com and we will send you a confirmation of your cancellation. No verbal agreements alter this section.
20. Refunds. No refunds, full or partial, will be given after the account set-up has been initiated for the Platform. Account set-up includes but is not limited to; safety consultation, activation of OSHIFY Safety Software account access, receipt of safety documentation or content, including Safety Manuals and Safety Activity Schedules, etc. No refunds, full or partial, will be given after the account set-up or any other contracted work has been initiated for the Service. Account set-up and contracted work includes but is not limited to; consultation, work performed in the account under an authorized login, documentation provided or obtained to bring the account into compliance, etc.
21. Payment Disputes. If Customer believes that OSHIFY has billed Customer incorrectly, Customer must contact OSHIFY no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to OSHIFY’s customer support department or the applicable Account Manager.
22. Disclaimer. EXCEPT AS EXPRESSLY PROVIDED HEREIN OR IN A STATEMENT OF SERVICE, OSHIFY DOES NOT WARRANT THAT ACCESS TO THE PLATFORMS, SOFTWARE OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, NOR DOES OSHIFY MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. FURTHER. OSHIFY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO SERVICES PROVIDED BY THIRD PARTY TECHNOLOGY SERVICE PROVIDERS RELATING TO OR SUPPORTING A PLATFORM, INCLUDING HOSTING AND MAINTENANCE SERVICES, AND ANY CLAIM OF CUSTOMER ARISING FROM OR RELATING TO SUCH SERVICES SHALL, AS BETWEEN OSHIFY AND SUCH SERVICE PROVIDER, BE SOLELY AGAINST SUCHSERVICE PROVIDER. THE PLATFORMS, SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” AND OSHIFY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW
23. Indemnification. You hereby agree to indemnify and hold harmless OSHIFY Corporation and its subsidiaries and Licensees, and their directors, officers, employees, agents, shareholders, partners, members, and other owners, against any and all claims, actions, demands, liabilities, losses, damages, judgments, settlements, costs, and expenses (including reasonable attorneys' fees) (any or all of the foregoing hereinafter referred to as "Losses") insofar as such Losses (or actions in respect thereof) arise out of or are based on intellectual property rights or a violation thereof.
24. Scope of Relationship. Both you and we agree that no joint venture, partnership, employment, or agency relationship exists between you and us as a result of this Agreement.
25. Not Legal Advice Communication of information by, in, to or through OSHIFY’s Platform, Services, email, phone, text or any other form of communication and your receipt or use of it, is not intended to convey or constitute legal advice, and is not a substitute for obtaining legal advice from a qualified attorney. 26. Links. We may from time to time, directly or indirectly, provide links to or accept links from Web sites or content of other parties for convenience. We do not control or maintain the material presented by other persons in their Web sites. The inclusion of any link on our Web site does not imply any association or relationship between OSHIFY and the person sponsoring the linked site and does not constitute or imply any endorsement, approval or sponsorship of the linked site by OSHIFY or the endorsement, approval or sponsorship of OSHIFY by the sponsor of the linked site. The links do not imply legal authority to use any protected rights of others reflected in the links.
27. No warranty or liability. We do not vouch for or assume any responsibility for the content, accuracy or completeness of material presented directly or indirectly in linked sites. The information presented is provided "as is" without representation or warranty of any kind -- as to suitability, reliability, applicability, merchantability, fitness, noninfringement, result, outcome or any other matter. We do not represent or warrant that such information is or will be always up-to-date, complete, or accurate. Any representation or warranty that might be otherwise implied is expressly disclaimed. You agree that we are not liable to you or others, in any way or for any damages of any kind or under any theory, arising from this site, or your access to or use of or reliance on the information in or through this site, including but not limited to liability or damages under contract or tort theories or any damages caused by viruses contained within electronic files of this site or any linked site, regardless of prior notice to us.
28. Arbitration. (a) Any dispute, question or difference arising between the parties to this Agreement in connection with this Agreement or otherwise in regard to the relationship of the parties hereto by virtue of the terms in this Agreement, including the construction and scope of this Agreement, that cannot be amicably resolved between them, shall be finally settled in accordance with Commercial Arbitration rules and regulations of the American Arbitration Association ("Association") then in effect by one or more arbitrators mutually selected by the parties from the commercial panel of the Association. The arbitrator(s) to be appointed shall be English speaking persons. The arbitrator(s) shall have the power to extend time for pronouncing the award with the consent of the parties. Judgment upon an arbitration may be entered in any court having competent jurisdiction thereof, and shall be binding, final and non-appealable. The arbitrator(s) shall have the power to award any and all remedies and relief whatsoever that is deemed appropriate under the circumstances, including, but not limited to, money damages and injunctive relief. (b)This arbitration provision shall be deemed to be self-executing and shall remain in full force and effect after the expiration or termination of this Agreement. In the event any party fails to appear at any arbitration proceeding, an award may be entered against such party by default or otherwise notwithstanding said failure to appear. The parties hereby consent to arbitration to be held within the City of Pensacola, State of Florida, and irrevocably agree that all actions or proceedings relating to this Agreement shall take place in the City of Pensacola, and waive any objections that they may have based on improper venue or forum non conveniens. The arbitrator(s)' fees in connection with any such arbitration proceeding shall be shared equally among the parties hereto.
29. Jurisdiction. Licensee agrees that this Agreement is governed by and shall be construed in accordance with the laws of the State of Florida, without reference to conflicts of laws principles. Each of the Parties irrevocably submits to the exclusive jurisdiction of the state and federal courts situated in Santa Rosa County, State of Florida for purposes of any suit, action or other proceeding arising out of this Agreement or any transaction contemplated hereby and agrees not to commence any action, suit or proceeding relating thereto except in such courts. Licensee also agrees that the parties shall attempt to mediate any disagreement before filing any lawsuit.
30. Severability. If any provision of this Agreement is held to be invalid or unenforceable, that provision shall be eliminated or limited to the minimum extent necessary such that the intent of the parties is effectuated, and the remainder of this agreement shall have full force and effect.
31. Binding. Licensee warrants and represents that by signing below, that he/she is the duly authorized agent with the capacity to bind the Licensee Company to the terms of this contract. Any usage of the digital products constitutes ratification of this Agreement.
32. Entire Agreement. This Agreement does not create an exclusive agreement between you and us. Both you and we will have the right to recommend similar products and services of third parties and to work with other parties in connection with the design, sale, installation, implementation and use of similar services and products of third parties.
33. 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 mitigatethe effect of a force majeure event.
34. Confidentiality. All confidential information, including, but not limited to, any business, technical, financial, and customer information, disclosed by one party to the other during negotiation or the effective term of this Agreement which is marked "Confidential," will remain the sole property of the disclosing party, and each party will keep in confidence and not use or disclose such proprietary information of the other party without express written permission of the disclosing party.
35. Notices. Notices regarding the Terms of this Agreement, including, but not limited to, Licensor’s changes in the terms, service of process, address changes and updating contact information shall be communicated to the licensee on OSHIFY’s website and/or direct email to the customer’s on-file email address.
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