Terms and Conditions

eSafety

CONTRACTOR MANAGEMENT SYSTEM
END USER LICENSE AGREEMENT
GENERAL TERMS AND CONDITIONS

Please read these Terms and Conditions (“Terms”, “Terms and Conditions”) carefully before using www.esafety.com operated by Safety Matters, Inc, d/b/a eSafety (“us”, “we”, “our” or “eSafety”), which provides access to the Contractor Management System (“eSafety Contractor”).

Your access to and use of eSafety Contractor is conditioned upon your acceptance of and
compliance with these Terms. These Terms apply to all visitors, users and others who wish to access or use eSafety Contractor.

By accessing or using eSafety Contractor you agree to be bound by these Terms. If you disagree with any part of the terms, then you do not have permission to access the eSafety Contractor.

1. Communication

1.1 Communications. By creating an Account on eSafety Contractor, you agree to subscribe to newsletters, marketing or promotional materials and other information we may send. However, you may opt out of receiving any, or all, of these communications from us by following the unsubscribe link or instructions provided in any email we send.

2. Content

2.1 Content. eSafety Contractor allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Content”). You are responsible for the Content that you post on or through eSafety Contractor, including its legality, reliability, and appropriateness.

By posting Content on or through eSafety Contractor, You represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and (ii) that the posting of your Content on or through eSafety Contractor does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright.

You retain any and all of your rights to any Content you submit, post or display on or through eSafety Contractor and you are responsible for protecting those rights. We take no responsibility and assume no liability for Content you or any third-party posts on or through eSafety Contractor. However, by posting Content using eSafety Contractor you grant us the right and license to use, modify, perform, display, reproduce, and distribute such Content on and through eSafety Contractor.

eSafety has the right but not the obligation to monitor and edit all Content provided by users.

In addition, any Content found on or through this eSafety Contractor are the property of eSafety or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.

3. Accounts

3.1 Accounts. When you create an account with us, you guarantee that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times. Inaccurate, incomplete, or obsolete information may result in the immediate termination of your account on eSafety Contractor.

You are responsible for maintaining the confidentiality of your account and password, including but not limited to the restriction of access to your computer and/or account. You agree
to accept responsibility for any and all activities or actions that occur under your account and/or password, whether your password is with eSafety Contractor or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your account.

You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.

4. Intellectual Property

4.1 Intellectual Property. eSafety Contractor and its original content (excluding Content provided by users), features and functionality are and will remain the exclusive property of eSafety and its licensors. eSafety Contractor is protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of eSafety.

5. Links to Other Websites

5.1 Links To Other Websites. eSafety Contractor may contain links to third party websites or services that are not owned or controlled by eSafety.

eSafety has no control over, and assumes no responsibility for the content, privacy policies, or practices of any third-party websites or services. We do not warrant the offerings of any of these entities/individuals or their websites.

You acknowledge and agree that eSafety shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such third-party websites or services.

We strongly advise you to read the terms and conditions and privacy policies of any third-
party websites or services that you visit.

6. Termination

6.1 Termination. We may terminate or suspend your account and bar access to eSafety Contractor immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of the Terms.

If you wish to terminate your account, you may simply discontinue using eSafety Contractor.

All provisions of the Terms which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

7. Indemnification

7.1 Indemnification. You agree to defend, indemnify and hold harmless eSafety and its licensee and licensors, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees), resulting from or arising out of a) your use and access of eSafety Contractor, by you or any person using your account and password; b) a breach of these Terms, or c) Content posted on eSafety Contractor.

8. Limitation of Liability

8.1 Limitation Of Liability. In no event shall eSafety, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use eSafety Contractor; (ii) any conduct or content of any third party on Safety Contractor; (iii) any content obtained from eSafety Contractor; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.

9. Disclaimer

9.1 Disclaimer. Your use of eSafety Contractor is at your sole risk. eSafety Contractor is provided on an “AS IS” and “AS AVAILABLE” basis. eSafety Contractor is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, non-infringement or course of performance.

eSafety, its subsidiaries, affiliates, and its licensors do not warrant that a) eSafety Contractor will function uninterrupted, secure or available at any particular time or location; b) any errors or defects will be corrected; c) eSafety Contractor is free of viruses or other harmful components; or d) the results of using eSafety Contractor will meet your requirements.

10. Exclusions

10.1 Exclusions. Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.

11. Governing Law

11.1 Governing Law. These Terms shall be governed and construed in accordance with the laws of Michigan, United States, without regard to its conflict of law provisions.

Our failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between us regarding eSafety Contractor, and supersede and replace any prior agreements we might have had between us regarding the eSafety Contractor.

12. Changes

12.1 Changes. We reserve the right, at our sole discretion, to modify or replace these Terms at any time. If a revision is material, we will provide at least 30 days notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion.

By continuing to access or use eSafety Contractor after any revisions become effective, you agree to be bound by the revised terms. If you do not agree to the new terms, you are no longer authorized to use eSafety Contractor.

13. Contact Information

13.1 Contact Information. If you have any questions about these Terms, please contact us at info@esafety.com.

eSafety

CONTRACTOR MANAGEMENT SYSTEM
LICENSE AGREEMENT
GENERAL TERMS AND CONDITIONS

1. License; Terms and Conditions

1.1 License. Safety Matters, Inc., d/b/a eSafety (the “Licensor” or “eSafety”) has granted to Licensee a non-exclusive, non-assignable, limited License (the “License”), to utilize the online Contractor Management System (“eSafety Contractor”), which License shall incorporate and be subject to all of the General Terms and Conditions set forth herein.

 

2. Development and Updates

2.1 Hosting of eSafety Contractor. eSafety will host eSafety Contractor on a secured server system for clients. The secured server system is backed-up hourly and protected from loss. eSafety will ensure 24/7 access for all users.

2.2 Maintenance; Creative Control. Licensor retains the rights and control over the site, including service maintenance, updates and promotions. Licensor shall also maintain exclusive control over the design, development and distribution of eSafety Contractor.

2.3 Technical Support. eSafety will provide technical support and technical expertise related to the hosted server, and advanced administrative user of the system. The Licensor will provide Licensee the following support and service during contract period:
1. Technical support during normal working hours.
2. Upgrades to eSafety Contractor due to regulatory changes and program changes.

 

3. Licensor Access and Rights

3.1 Website Access. Licensor shall provide Licensee access to eSafety Contractor from which Licensee will have the ability to monitor the use of the training materials, programs and content pursuant to this Agreement.

3.2 Acceptable Use. The Licensee acknowledges that eSafety Contractor may be used only for lawful purposes. Transmission, distribution or storage of any material in violation of any applicable law or regulation is prohibited. This includes without limitation, material protected by copyright, trademarked, trade secret or other intellectual property right used without proper authorization and material that is obscene, defamatory, constitutes an illegal threat, or violates export control laws. Any breach of these standards may void this Agreement.

3.3 Confidentiality. All client information and data is the shared property of Licensee
and Licensor, is considered confidential, and must not be released in any form, directly or
indirectly by either Party, without the express written consent of the other Parties involved.

 

4. Fees and Payment

4.1 License Fees. Licensee agrees to pay to Licensor the License fee(s) specified in the License.

4.2 Taxes. Licensee shall be responsible for all sales, use and other taxes which may be imposed upon any payments made for the direct use, purchase or sale of the training materials, content and programs, pursuant to this Agreement, other than U.S. taxes imposed upon the net income of Licensor.

 

5. Ownership

5.1 Intellectual Property Rights of Licensor. All original content provided by eSafety and eSafety Contractor shall remain the sole and exclusive property of eSafety, including, without limitation, all copyrights, trademarks, patents, trade secrets, and any other proprietary rights, subject to the rights granted to Licensee pursuant to this Agreement. In addition, eSafety shall be the sole owner of all of its courses, training materials, website pages and content including anything provided by eSafety or produced for Licensee pursuant to this Agreement, including, but not limited, to any derivative works in Content, illustrations, designs, computer software, programming code, data, information, Adobe Flash animations, HTML script, together with any and all copyrights, trademarks, patents, trade secrets, and any other proprietary rights inherent therein and appurtenant thereto (collectively “eSafety Materials”). To the extent that ownership of the eSafety Materials does not automatically vest in eSafety by virtue of this Agreement or otherwise, Licensee hereby transfers and assigns to eSafety all rights, title and interest that Licensee may have in and to the eSafety Materials. Licensee agrees to sign any necessary documents and otherwise assist eSafety with respect to the protection of the foregoing proprietary rights.

 

6. Communications

6.1 Communications. By creating an Account on eSafety Contractor, Licensee agrees to subscribe to newsletters, marketing or promotional materials and other similar types of information Licensor may send. However, Licensee may opt out of receiving any, or all, of these communications from Licensor by following the unsubscribe link or instructions provided by Licensor.

 

7. Content

7.1 Content. eSafety Contractor allows Licensee to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Content”). Licensee is responsible for the Content that it posts on or through eSafety Contractor, including its legality, reliability, and appropriateness.

7.2 By posting Content on or through eSafety Contractor, Licensee represents and warrants that: (i) the Content is owned by Licensee and/or Licensee has the right to use it and the right to grant Licensor the rights and license as provided in these Terms, and (ii) that the posting of Licensees Content on or through eSafety Contractor does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. Licensor reserves the right to terminate the account of anyone found to be infringing on a copyright.

7.3 Licensee retains any and all of its rights to any Content it submits, posts or displays on or through eSafety Contractor and Licensee is responsible for protecting those rights. Licensor takes no responsibility and assumes no liability for Content Licensee or any third-party posts on or through eSafety Contractor. However, by posting Content using eSafety Contractor Licensee grants Licensor the right and license to use, modify, perform, display, reproduce, and distribute such Content on and through eSafety Contractor.

7.4 eSafety has the right but not the obligation to monitor and edit all Content provided by Licensee.

7.5 In addition, any Content found on or through eSafety Contractor are the property of eSafety or used with permission. Licensee may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from Licensor.

 

8. Representations and Warranties

8.1 By Licensor.
1. Licensor represents and warrants that (i) it has the right, power and authority to enter into this Agreement, (ii) the Content will not infringe any trademark, copyright, privacy rights, publicity rights, moral rights, U.S. patent rights, or other proprietary right of any third party, (iii) the Content is accurate, up to date and does not contain any false or misleading information or data, (iv) Licensor owns the Content or otherwise has the right to grant the rights set forth in this Agreement, (v) the Content complies with all applicable laws, regulations and industry standards, and (vi) the Content will not contain any viruses, Trojan Horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information.

2. Licensor further warrants (I) that the work under this Agreement will be performed in a professional and workman-like manner and (ii) that it has and will obtain Agreements with its employees and contractors sufficient to allow it to provide the Company with the assignments and Licenses to intellectual property rights developed by them for Licensee as provided for herein.

6.2 By Licensee. The Licensee represents and warrants that it has the right, power and authority to enter into this Agreement and to fully perform its obligations hereunder.

 

9. Limitation of Liability

9.1 Limitation of Liability. In no event shall eSafety, nor its directors, employees, partners, agents, suppliers, or affiliates, be liable for any indirect, incidental, special, consequential or punitive damages, including without limitation, loss of profits, data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use eSafety Contractor; (ii) any conduct or content of any third party on eSafety Contractor; (iii) any content obtained from eSafety Contractor; and (iv) unauthorized access, use or alteration of your transmissions or content, whether based on warranty, contract, tort (including negligence) or any other legal theory, whether or not we have been informed of the possibility of such damage, and even if a remedy set forth herein is found to have failed of its essential purpose.

 

10. Indemnification

10.1 Indemnification. Each party shall defend, indemnify and hold harmless the other party and its successors, assigns, employees, agents, customers, officers and affiliates from and against any and all claims, suits or proceedings related to or arising out of the breach by the indemnifying party of any of its representations, warranties or obligations under this Agreement. The indemnifying party shall pay all damages, settlement amounts, costs and expenses, including attorney fees, arising from such claims, suits or proceedings, provided that: (a) the other party notifies the indemnifying party promptly in writing of the claim, suit or proceeding; (b) the indemnifying party has sole control of the defense and all related settlement negotiations; and c) the other party provides the indemnifying party with reasonable assistance, information and authority to perform the above at the indemnifying party’s expense. The parties’ indemnification obligations hereunder shall survive the termination of this Agreement.

 

11. Termination

11.1 Termination. Licensor may terminate this Agreement upon thirty (30) days prior written notice in the event that Licensee is in breach of any provision of this Agreement, in which case Licensor shall have no further obligation to Licensee under the terms of this Agreement or otherwise. Prior to electing to terminate this Agreement, pursuant to this section 8.1, Licensor must first provide written or electronic notification to the Licensee of the condition which causes Licensee to be in breach of this contract and also provide Licensee ten (10) business days to cure such breach.

 

12. Miscellaneous

12.1 Relationship of Parties. This Agreement does not give either party the power to direct or control the day to day activities of the other, constitute the parties as partners, joint ventures, co-owners, principal-agent, franchiser-franchisee, or otherwise participants in a joint or common undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.

12.2 Waiver. Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action.

12.3 Amendment. This Agreement may not be amended, except by writing signed by both parties.

12.4 Assignment. This Agreement and the benefits conferred to Licensee hereunder may not be assigned by Licensee to any third party without the prior written consent of the Licensor which may be withheld for any reason. The rights and responsibilities of Licensor pursuant to this Agreement may be assigned to any third party, to which Licensor sells substantially all of the business and/or assets of eSafety.

12.5 Governing Law. This Agreement will be interpreted and construed in accordance with the laws of the State of Michigan, without regard to conflict of law principles.

12.6 Entire Agreement. This Agreement (including the Exhibit(s) and any addenda hereto signed by both parties) contains the entire Agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and Agreements, whether oral or written, between the parties with respect to said subject matter.

12.7 Attorney Fees. In the event that any suit or other action is instituted to interpret or enforce this Agreement, the prevailing party shall be entitled to recover its attorney fees, including those incurred on appeal, as determined by the court.

12.8 Notice. All notices and other communications given to or made upon any party hereto in connection with this Agreement shall, except as herein otherwise expressly provided, be in writing and mailed, faxed or delivered to the addresses set forth herein or at such other address as shall be specifically designated by any such party. All such notices or other communications shall be effective, if mailed, when deposited in the U.S. mail, registered, first class postage prepaid; if faxed, when faxed; or if delivered, when delivered.

 

13. Arbitraition

13.1 Arbitration. Any and all claims and disputes between the parties with respect to this Agreement and the rights and obligations provided under this Agreement shall be submitted to binding arbitration in accordance with the applicable rules of the American Arbitration Association. Any ruling of the arbitrator shall be deemed final and binding and may be enforced by any state or federal court having appropriate jurisdiction over the parties and the subject matter.

13.2 The parties hereby agree that the sole remedy for the breach of any portion of this Agreement by either party shall be monetary damages except equitable remedies shall be available to Licensee for a breach by Licensor of Section 3.3 above, and that such damages may only be awarded through the arbitration process set forth herein. Notwithstanding the foregoing, it is understood that damages shall include any remedies or damages available to Licensor under any federal or state law, rule or regulation, including but not limited to federal trademark, trade name, patent or copyright protection laws, rules or regulations.

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