User Agreement and Service Agreement

Safety First User and Service Agreement

1. Introduction Use of this website and the services provided via it getshopsafe.com are conditional upon you accepting the following terms and conditions. Unless otherwise specified, your acceptance of this User Agreement shall be indicated by your use of and/or registration with getshopsafe.com. getshopsafe.com is provided by A&G Safety Soultions at getshopsafe.com and its suppliers (“we”/”our”/”us”).
These terms and conditions and our Privacy Policy, (together the “User Agreement”) form our entire agreement with you in respect of non-chargeable use of getshopsafe.com and supersede any prior agreement or arrangement with you in respect of getshopsafe.com. If a school name is inserted in your registration request, then the User Agreement shall be between us and that company and accordingly unless the context otherwise requires, references to “you” and “your” in this User Agreement shall also be to that company. The purchase of [goods/services] from us is subject to our Terms and Conditions of Purchase. If there are any updates to this User Agreement or to the Terms and Conditions of Purchase, we will bring this to your attention on the home page of getshopsafe.com.
2. Availability of getshopsafe.com We will endeavour to ensure that getshopsafe.com is available 24 hours per day without any interruptions. However, we reserve the right to make getshopsafe.com unavailable at any time or to restrict access to parts or all of getshopsafe.com without notice. getshopsafe.com is a general information service. We will endeavour not to make it misleading, but we cannot represent that the information accessible on or via getshopsafe.com is accurate, not-misleading, complete or up to date.
3. Use of getshopsafe.com getshopsafe.com is designed for your personal, non-commercial use and you must not use it in any other way without our consent. Except as permitted under applicable law, you must not use, copy, translate, publish, licence or sell getshopsafe.com or any materials or information in getshopsafe.com or the structure, overall style and program code of getshopsafe.com without our consent. If you wish to make a request for consent, please contact info@getshopsafe.com.
4. Your Contributions You agree to only use getshopsafe.com for lawful purposes and that any information that you provide in connection with, or which forms part of, getshopsafe.com will be, as far as you are aware, true and accurate and will not infringe any copyright or trade mark, or any right of privacy, publicity or personality or any other right, whether registered or unregistered, of any other nature or any person, or be obscene or libellous or blasphemous or defamatory and you agree to indemnify us against all claims, proceedings, damages, liabilities and costs, including legal costs arising out of your breach of this term. We cannot make any assurances about the information or contribution made by any other user and you should exercise caution before acting or otherwise relying upon any information you obtain via the getshopsafe.com.
5. Links getshopsafe.com includes links to other internet sites. Without limiting what we say elsewhere, we make no representations or warranties about those sites or their content, nor that the links work. If you wish to link to getshopsafe.com you may only do so at http://www.getshopsafe.com. Details of our linking arrangements may be obtained from info@getshopsafe.com.
6. Data Protection It is your responsibility to ensure that that you give us an accurate and valid e-mail address and other contact details and tell us of any changes to them, however we cannot make any assurances about any other user you may meet using the getshopsafe.com. We comply with all applicable Data Protection laws in the US. For a description of how we use your personal data, please see our Privacy Policy.
7. Intellectual property getshopsafe.com, its style and structure, and the materials and information on getshopsafe.com of getshopsafe.com are protected by copyright and other intellectual property rights, and may not be used by you except as expressly provided in this User Agreement. The authors of the documents in getshopsafe.com assert their moral rights. getshopsafe.com and A&G Safety Solutions are registered trademarks of A&G Safety Solutions.
8. Our Liability It is a condition that your use of getshopsafe.com is at your own risk. We shall not be liable to you or in breach of this User Agreement for any delay or failure to perform any obligation if the delay or failure is due to a cause beyond our reasonable control including, without limitation, the blocking or restricting of information to and/or from our network.
Except as expressly provided in this User agreement, we disclaim any further representations, warranties, conditions or other terms, express or implied, by statute, collaterally or otherwise, including but not limited to implied warranties, conditions or other terms of satisfactory quality, fitness for a particular purpose or reasonable care and skill.
We disclaim all and will not be liable in contract, tort (including, without limitation, negligence) or otherwise arising in connection with this User Agreement or the getshopsafe.com for: (i) consequential, indirect or special loss or damage; or (ii) any loss of goodwill or reputation; or (iii) any economic losses (including loss of revenues, profits, contracts, business or anticipated savings), in each case, even if we have been advised of the possibility of such loss or damage and howsoever incurred.
9. Small Print Either of us may terminate this User Agreement at any time. You may not transfer any of your rights or delegate any of your obligations under this User Agreement without our prior written consent. If we fail to enforce any provision of this User Agreement, that failure will not preclude us from enforcing either that provision (or any similar provision) on a later occasion. Nothing in this User Agreement shall confer on any third party any benefit or the right to enforce any term of the User Agreement. This User Agreement is governed by English law and any dispute connected with this agreement is subject to the exclusive jurisdiction of the English courts. Nothing in this User Agreement affects your statutory rights as a consumer.
10. Complaints If you believe that your intellectual property or other rights are being infringed by the getshopsafe.com, or if you are dissatisfied with getshopsafe.com or any aspect of our service, in the first instance please contact info@getshopsafe.com.
11. Instruction In no way is Safety First to replace teacher instruction or supervision of students. Teachers must supervise student any time they are using tools and/or any equipment while in the mechanics laboratory. If any unsafe practices are witnessed then the teacher must stop that student immediately from performing that task. Teachers must supervise all testing to make sure students do not cheat. A copy of certificates’ should be kept on file for each piece of equipment for the teachers records. Safety First will do all possible to maintain records for at least 5 years after the student graduates high school. Safety First will not be held liable for any typos or any information overlooked. Teachers must make students know how to operate equipment in their school laboratory.

This Service Subscription Agreement (“Agreement”) is made and entered into as of later of the two signature dates below (“Effective Date”), between A&G Safety Solutions , LLC. and its Affiliates (collectively, “A&G Safety Solutions ”) and the undersigned subscriber (“Subscriber”). This Agreement sets forth the terms pursuant to which Subscriber will be permitted to use certain of A&G Safety Solutions ’s web-based and professional services. The parties agree as follows:

Definitions
1. “Account” means a unique account created for Subscriber to access the Subscription Services.
2. “Add-On Services” means additional services that may be added to the Subscription Services.
3. “Affiliate” means an entity that controls, is controlled by or is under common control with a party, where “control” means ownership of 50% or more of the shares, equity interest or other securities entitled to vote for election of directors or other managing authority.
4. “Client” means a customer of Subscriber for whom Subscriber is purchasing and/or using the Services (if applicable).
5. “Group” means a unit of usage rights for the Subscription Services. Groups may be set for individual Clients, specific campaigns, etc.
6. “Professional Services” means time-and-materials services provided to Subscriber, such as consulting services, onboarding support, etc.
7. “Scope Limitations” means the limitations on Subscriber’s use of the Subscription Services specified in one or more applicable Service Orders. Scope Limitations may include limits on the volume of data processed by the Subscription Services, and/or a maximum number of users, social media profiles, brand keywords or such other limits as are set forth in the Service Order.
8. “Services” means, collectively, Subscription Services, Add-On Services and Professional Services.
9. “Service Order” means a document setting out the specific details of one or more specific Services to be provided to Subscriber, which is agreed upon and signed by both parties.
10. “Sites” means https://getshopsafe.com and/or http://moodle.getshopsafe.com
11. “Subscription Services” means the subscription services provided by A&G Safety Solutions to Subscriber, as identified in one or more Service Orders. The Subscription Services include the use of web-based applications, Mobile Applications (if applicable), technical support, and documentation such as user manuals and online help files
12. “Subscription Term” means the subscription term set forth in the applicable Service Order for the Services. School Year July 1^st to June 30^th.
Service Orders
1. Service Orders. Once executed by both parties, each Service Order will be a unique agreement that incorporates the terms of this Agreement and stands alone with respect to all other Service Orders. If there is a conflict between the terms of this Agreement and the terms of a Service Order, the terms of this Agreement will control unless the Service Order states that a specific provision of this Agreement will be superseded by a specific provision of the Service Order. A&G Safety Solutions will provide, and Subscriber will pay for, all Services set out in each Service Order, subject to the terms of the Service Order and this Agreement.
Use of the Services
1. Use of the Services. Subject to the terms and conditions of this Agreement, A&G Safety Solutions grants to Subscriber a limited, non-exclusive, non-transferable, non-sublicenseable right during the term of each Service Order to use the Services set forth therein. Subscriber’s right to use the Services is subject to the Scope Limitations and contingent upon Subscriber’s compliance with the Scope Limitations and the terms of the Service Order and this Agreement. If the Service Order permits usage by Clients, such Clients may use the Services in accordance with the terms of this Agreement. Subscriber will be liable for all use of the Services by its Clients. By adding any Client to Subscriber’s account, Subscriber represents and warrants that Subscriber has obtained all necessary authorizations and consents from such Client to bind it to this Agreement. Subscriber agrees that A&G Safety Solutions can access its account information as necessary, in A&G Safety Solutions ’s sole discretion, to provide Subscriber with the Services and any related support. A&G Safety Solutions will not disclose such data except if compelled by law, permitted by Subscriber, or pursuant to the terms of the A&G Safety Solutions ’s Privacy Policy, which is available at https://simplymeasured.com/privacy (the “Privacy Policy”) and is incorporated into this Agreement.
2. Access and Users; Groups. Subscriber is responsible for managing access to its Account and for all information, data, text, messages or other materials that Subscriber’s users post or otherwise transmit via the Services. Subscriber may permit its agents, contractors or service providers to access the Services through its Account, provided that such third party is using the Services on behalf of Subscriber, Subscriber ensures that any person or entity using its Account comply with the terms of this Agreement, and that Subscriber remains responsible for any action taken using its Account. If the Scope Limitations include limits on the number of users, Subscriber will ensure that each user is issued its own credentials and that credentials are not shared by more than one user. If Subscriber uses the Services on behalf of its Clients or if it grants access to the Services to its Clients, Subscriber will be responsible for ensuring that such Clients are not able to access confidential or proprietary information of another Client. Subscriber may only assign one Client to a Group and may not grant access to one Client’s Group to another Client or third party without the assigned Client’s consent.
3. Use Restrictions. Subscriber may use the Services solely for its own internal business operations or on behalf of Subscriber’s Clients. Except as otherwise explicitly provided in this Agreement and/or applicable Service Order, Subscriber will not, and will not permit or authorize third parties to: (a) license, sublicense, sell, rent, lease, or otherwise permit third parties to use the Services; (b) use the Services to provide services to third parties (e.g., as a service bureau); (c) circumvent or disable any security or other technological features or measures of the Services; (d) reverse engineer any element of the Services, or use the Services or any of A&G Safety Solutions ’s Confidential Information (as defined below) to compete with the Services; (e) modify, adapt or hack the Services to falsely imply any sponsorship or association with A&G Safety Solutions , or otherwise attempt to gain unauthorized access to the Services or its related systems or networks; (f) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or the components of the Services; (g) use the Services to knowingly post, upload, link to, send or store any content that is unlawful, racist, hateful, obscene, discriminatory, or that contains any viruses, malware, Trojan horses, time bombs, or any other similar harmful software; (h) attempt to use any method to gain unauthorized access to any paid features of the Sites; (i) use automated scripts to collect information from or otherwise interact with the Sites or the Services; (j) deep-link to the Sites for any purpose (other than A&G Safety Solutions ’s home page), unless expressly authorized in writing by A&G Safety Solutions ; (k) impersonate any other user of the Services; or (l) use the Services in violation of any social media network acceptable use policy, terms of use or any similar policy or terms. Subscriber shall not use the Services for surveillance purposes or gathering intelligence, including but not limited to: (i) investigating or tracking individual users or their content, or to obtain information on users or their content, in a manner that would require a subpoena, court order, or other valid legal process; (ii) tracking, alerting, or other monitoring of sensitive events (including but not limited to protests, rallies, or community organizing meetings); (iii) conducting or providing surveillance, analyses or research that isolates a group of individuals or any single individual for any unlawful or discriminatory purpose or in a manner that would be inconsistent with the individual users’ reasonable expectations of privacy; (iv) to violate the Universal Declaration of Human Rights (located at http://www.un.org/en/documents/udhr), including, without limitation, Articles 12, 18, or 19; or (v) targeting, segmenting, or profiling individuals based on health (including pregnancy), negative financial status or condition, political affiliation or beliefs, racial or ethnic origin, religious or philosophical affiliation or beliefs, sex life or sexual orientation, trade union membership, data relating to any alleged or actual commission of a crime, or any other sensitive categories of personal information prohibited by law. A&G Safety Solutions shall have the right to terminate this Agreement and any Order Form/Invoice, if A&G Safety Solutions reasonably suspects that Subscriber has violated the foregoing restrictions.
4. Compliance with Laws. Subscriber will use the Services in compliance with all applicable laws and regulations and in a manner that does not infringe on the rights of any third party or violate any third party’s privacy rights.
5. Protection Against Unauthorized Use. Subscriber will use reasonable efforts to prevent any unauthorized use of the Services and immediately notify A&G Safety Solutions in writing of any unauthorized use that comes to Subscriber’s attention. If there is unauthorized use by anyone who obtained access to the Services directly or indirectly through Subscriber, Subscriber will take all steps reasonably necessary to terminate the unauthorized use. Subscriber will cooperate and assist with any actions taken by A&G Safety Solutions to prevent or terminate unauthorized use of the Services.
6. Right to Suspend Services. A&G Safety Solutions may suspend Subscriber’s or any Client’s use of the Services if A&G Safety Solutions reasonably and in good faith believes such suspension is necessary to prevent unauthorized use of the Services or to prevent an ongoing violation of any applicable laws or regulations. A&G Safety Solutions will use commercially reasonable efforts to notify Subscriber prior to any such suspension and will only suspend the Services to the extent necessary to prevent such unauthorized use or violation. In addition, if Subscriber fails to timely pay any fees in accordance with the terms of this Agreement and/or any Service Order, A&G Safety Solutions may, without limitation to any of its other rights or remedies, suspend performance of the Services until it receives all amounts due.
7. Reservation of Rights. A&G Safety Solutions grants to Subscriber a limited right to use the Services under this Agreement. Subscriber will not have any rights to the Services except as expressly granted in this Agreement. A&G Safety Solutions reserves to itself and its licensors all rights to the Services not expressly granted to Subscriber in accordance with this Agreement. A&G Safety Solutions and its licensors retain all copyright, patent, and other intellectual property rights in and to the Services.
8. Statistical Data. Subscriber acknowledges and agrees that A&G Safety Solutions shall have the right to utilize data capture, syndication, and analysis tools, and other similar tools, to extract, compile, synthesize, and analyze any non-personally and non-Subscriber identifiable data or information resulting from Subscriber’s use of the Services (“Statistical Data”). Statistical Data may be collected by A&G Safety Solutions for any lawful business purpose without a duty of accounting to Subscriber, provided that the Statistical Data is used only in an anonymized, aggregated form, without specifically identifying the source of the Statistical Data.
9. Feedback. A&G Safety Solutions shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable and perpetual license to incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback A&G Safety Solutions receives from Subscriber.
Third Party Services
1. External Sites. The Services may contain links to, or otherwise may allow Subscriber to connect to and use certain third party products, service or software under separate terms and conditions (collectively, “Third-party Service”) in conjunction with the Services. If Subscriber decides to access and use such Third-party Service, Subscriber acknowledges that its use of said Third-party Service is governed solely by the terms and conditions of such Third-party Service, and A&G Safety Solutions does not endorse, is not responsible for, and makes no representations as to such Third-party Service, its content or the manner in which such Third-party Service handles Subscriber’s data. A&G Safety Solutions is not liable for any damage or loss caused or alleged to be caused by or in connection with Subscriber’s access or use of any such Third-party Service, or Subscriber’s reliance on the privacy practices or other policies of such Third-party Service.
2. Integration. The Services may contain features that enable various Third-party Services (such as a social media service like Facebook and Twitter) to be directly integrated into Subscriber’s A&G Safety Solutions To take advantage of these features, Subscriber will be required to register for or log into such Third-party Service on their respective websites. By accessing/enabling a Third-party Service within the Services, Subscriber is allowing A&G Safety Solutions to pass Subscriber’s log-in information to the Third-party Service for this purpose.
Fees and Payments
1. Fees. Subscriber will pay A&G Safety Solutions the fees specified in each applicable Service Order. If Subscriber orders additional Services or changes the Services it is receiving, the fees for such additional or changed services will be charged at the then-current pricing for such additional or changed services and will commence on the activation date listed in the Service Order. Any resulting change in fees shall be reflected in future invoices. All amounts payable under this Agreement are denominated in United States dollars, and Subscriber will pay all such amounts in United States dollars. Except as otherwise provided in this Agreement, fees are non-refundable. There are no refunds or credits for partial months of Services, plan downgrades, or refunds for unused time if Subscriber closes its account before the end of the term of any Service Order. Unless otherwise specified in the Service Order, the Services and any Add-On Services purchased by Subscriber during the Subscription Term, will automatically renew for additional periods equal to the length of the Subscription Term unless either party provides written notice to the other party at least 30 days prior to the expiration of the Subscription Term.
2. Payment Terms. Unless otherwise specified in the applicable Service Order, Subscriber will pay all amounts due within thirty (30) days of the date of the applicable invoice, except for amounts subject to a good faith dispute, provided that Subscriber notifies A&G Safety Solutions of any such dispute in writing prior to the date such amounts would otherwise be due, and that Subscriber cooperates with A&G Safety Solutions in promptly resolving such dispute. Any amount not paid when due will be subject to finance charges equal to one and one-half percent (1.5%) of the unpaid balance per month or the highest rate permitted by applicable usury law, whichever is less, determined and compounded daily from the date due until the date paid. Subscriber will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by A&G Safety Solutions to collect any amount that is not paid when due. Amounts due from Subscriber under this Agreement may not be withheld or offset by Subscriber against amounts due to Subscriber for any reason.
3. Taxes. Other than net income taxes imposed on A&G Safety Solutions , Subscriber will bear all taxes, duties, and other governmental charges (collectively, “taxes”) resulting from its purchase or use of the Services. Taxes will not be deducted from or set off against the fees set forth in the applicable Service Order or invoice.
Term and Termination
1. Agreement Term. This Agreement commences on the Effective Date and will remain in effect while any Service Orders are outstanding.
2. Service Order Term. Each Service Order will be valid for the term specified on the such Service Order unless the Service Order is terminated earlier in accordance with the terms of this Agreement.
3. Termination for Cause. Either party may terminate a Service Order or this Agreement (i) upon thirty (30) days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) immediately upon written notice if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4. Post-Termination Obligations. If this Agreement or a Service Order is terminated for any reason, (a) Subscriber will pay to A&G Safety Solutions any fees or other amounts that have accrued prior to the effective date of the termination, (b) any and all liabilities accrued prior to the effective date of the termination will survive, and (c) Subscriber will discontinue all use of the Services. Upon termination of this Agreement or any Service Order, A&G Safety Solutions shall have the right to remove Subscriber’s account information and account settings after thirty (30) days, Subscriber will not be able to recover this data or content (except that content stored/published to third-party websites, that data will remain on said third-party websites pursuant to those website’s terms and conditions). All provisions of this Agreement that, by their nature, are intended to survive termination (including those related to third party claims and limitations on liability) will remain in effect.
Confidentiality
1. Definition of Confidential Information. For the purpose of this Agreement, “Confidential Information” means non-public information of A&G Safety Solutions or Subscriber disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects, or to which the other party may have access, which (i) a reasonable person would consider confidential or (ii) is marked “confidential” or “proprietary” or some similar designation by the disclosing party. Confidential Information will not, however, include any information that (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party; (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party other than as a result of a violation of this Agreement by the receiving party; (iii) is already in the possession of the receiving party at the time of disclosure by the disclosing party, as shown by the receiving party’s files and records; (iv) is obtained by the receiving party from a third party without a breach of the third party’s obligations of confidentiality; or (v) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession.
2. Protection of Confidential Information. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees, advisors, agents and other representatives who require access in order to perform its obligations hereunder and who agreed to be bound by these obligations of confidentiality and non-disclosure.
Warranties and Disclaimer
1. Mutual Warranties. Each party represents and warrants to the other that: (a) this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms; and (b) no authorization or approval from any third party is required in connection with such party’s execution, delivery, or performance of this Agreement.
2. Disclaimer. EXCEPT FOR THE EXPRESS REPRESENTATIONS AND WARRANTIES STATED IN THIS SECTION 8, A&G SAFETY SOLUTIONS MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. A&G SAFETY SOLUTIONS EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ON ITS BEHALF AND ON BEHALF OF ITS LICENSORS. A&G SAFETY SOLUTIONS RELIES ON THIRD PARTY DATA SOURCES FOR INFORMATION AND THEREFORE DOES NOT WARRANT THAT any information PROVIDED THROUGH the Services IS accuraTE OR COMPLETE OR THAT any information PROVIDED THROUGH the Services OR THIRD PARTY DATA WILL ALWAYS BE AVAILABLE. A&G SAFETY SOLUTIONS DISCLAIMS ALL LIABILITY FOR ANY MALFUNCTIONING, IMPOSSIBILITY OF ACCESS, OR POOR USE CONDITIONS OF THE SERVICES DUE TO INAPPROPRIATE EQUIPMENT, DISTURBANCES RELATED TO INTERNET SERVICE PROVIDERS, TO THE SATURATION OF THE INTERNET NETWORK OR ANY OTHER ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMMUNICATIONS LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, USER COMMUNICATIONS, PROBLEMS RELATED TO THE SERVICES OR ITS USE, LOSS OF PERSONAL CONTENT ON THE SITES NOT WITHIN A&G SAFETY SOLUTIONS ’S REASONABLE CONTROL.
Intellectual Property Infringement
1. Defense and Indemnification. A&G Safety Solutions will, at its expense, either defend Subscriber and Subscriber’s officers, directors, employees, agents, permitted successors and assigns from or settle any claim, proceeding, or suit (“Claim”) brought by a third party against Subscriber alleging that Subscriber’s use of the Services infringe or misappropriate any patent, copyright, trade secret, or trademark, right of any third party, and indemnify Subscriber from all damages, costs, and attorneys’ fees finally awarded in any such Claim or paid to any third party to settle any such Claim. A&G Safety Solutions ’s obligation under this section is contingent on (a) Subscriber giving A&G Safety Solutions prompt written notice of the Claim; (b) Subscriber granting A&G Safety Solutions full and complete control over the defense and settlement of the Claim; and (c) Subscriber providing assistance in connection with the defense and settlement of the Claim as A&G Safety Solutions may reasonably request, at A&G Safety Solutions ’s cost. Subscriber will not defend or settle any Claim eligible for indemnification under this section without A&G Safety Solutions ’s prior written consent.
2. Infringement Remedy. If Subscriber is enjoined or otherwise prohibited from using the Services or a portion thereof based on an allegation that the Services violate any third party intellectual property right (including a Claim), or if A&G Safety Solutions reasonably determines that such prohibition is likely, then A&G Safety Solutions will, at its sole expense and option: (a) obtain for Subscriber the right to use the allegedly infringing portions of the Services; (b) modify the allegedly infringing portions of the Services so as to render them non-infringing without substantially diminishing or impairing their functionality; or (c) replace the allegedly infringing portions of the Services with non-infringing items of substantially similar functionality. If A&G Safety Solutions determines that the foregoing remedies are not commercially reasonable, then A&G Safety Solutions may terminate the impacted Service Order, or portion thereof, and will promptly provide a prorated refund to Subscriber for any prepaid fees received by A&G Safety Solutions for any Services that have not yet been performed at the time of termination.
3. Exclusions from Obligations. A&G Safety Solutions will have no obligation under this Section 9 for any infringement or misappropriation to the extent that it arises out of or is based upon (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) any aspects of the Services that are provided to comply with designs, requirements, or specifications required by or provided by Subscriber, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services by Subscriber for purposes not intended or outside the scope of the license granted to Subscriber; (d) Subscriber’s failure to use the Services in accordance with written instructions provided by A&G Safety Solutions , if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by A&G Safety Solutions where such infringement or misappropriation would not have occurred absent such modification.
4. Limited Remedy. This Section 9 states A&G Safety Solutions ’s sole and exclusive liability, and Subscriber’s sole and exclusive remedy, for the actual or alleged infringement or misappropriation of any third party intellectual property right by the Services.
Subscriber Indemnification
1. Subscriber will defend A&G Safety Solutions and its officers, directors, employees, agents, successors and assigns from any actual or threatened third party Claim arising out of or based upon Subscriber’s breach of Section 3, and indemnify A&G Safety Solutions from all damages, costs, and attorneys’ fees finally awarded in any such Claim or all amounts that Subscriber agrees to pay to any third party to settle any such Claim. Subscriber’s obligation under this section is contingent on:(a) A&G Safety Solutions giving Subscriber prompt written notice of the Claim; (b) A&G Safety Solutions granting Subscriber full and complete control over the defense and settlement of the Claim; and (c) A&G Safety Solutions providing assistance in connection with the defense and settlement of the Claim as Subscriber may reasonably request. A&G Safety Solutions will not defend or settle any Claim eligible for indemnification under this section without Subscriber’s prior written consent.
Limitations of Liability
1. Disclaimer of Indirect Damages. NEITHER PARTY OR ITS AFFILIATES WILL, UNDER ANY CIRCUMSTANCES, BE LIABLE TO THE OTHER PARTY, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE, FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, OR EXEMPLARY, ENHANCED, OR PUNITIVE DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO LOST PROFITS, REVENUE, BUSINESS, OR DATA; BUSINESS INTERRUPTION; OR LOSS OF GOODWILL OR REPUTATION, REGARDLESS OF WHETHER THE PARTY IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING OR ANY LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE.
2. Cap on Liability. UNDER NO CIRCUMSTANCES WILL THE AGGREGATE LIABILITY OF EITHER PARTY AND THEIR RESPECTIVE AFFILIATES OF ALL KINDS ARISING OUT OF OR RELATED TO THIS AGREEMENT, (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT PAID AND AMOUNTS ACCRUED BUT NOT YET PAID BY SUBSCRIBER TO A&G SAFETY SOLUTIONS UNDER THE APPLICABLE SERVICE ORDER DURING THE TWELVE MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION). THE FOREGOING LIMITATIONS WILL NOT IN ANY WAY LIMIT SUBSCRIBER’S PAYMENT OBLIGATIONS UNDER SECTION 5 ABOVE.
3. Independent Allocations of Risk. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY A&G SAFETY SOLUTIONS TO SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 11 WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
4. State Prohibition of Limitation of Liability and Disclaimer of Implied Warranties. Some states do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply. IN THESE STATES, EACH PARTY’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
General
1. Export Compliance and Anti-Corruption. The Services may be subject to export laws and regulations of the United States and other jurisdictions. Each party represents that it is not named on any U.S. government denied-party list. Subscriber shall not permit users to access or use the Services in a U.S.-embargoed country or in violation of any U.S. export law or regulation. Subscriber further represents that it has not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value in connection with this Agreement (excluding any reasonable gifts and entertainment provided in the ordinary course of business).
2. Federal Government End Use Provisions. If Subscriber is a U.S. federal government end user, the Services is a “Commercial Item” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as those terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Services are licensed to Subscriber with only those rights as provided under the terms and conditions of this Agreement.
3. Assignability. Neither party may assign its right, duties, and obligations under this Agreement without the other party’s prior written consent, which consent will not be unreasonably withheld or delayed, except that a party may assign this Agreement without the other party’s consent to a successor (including a successor by way of merger, acquisition, sale of assets, or operation of law) if the successor agrees to assume and fulfill all of the assigning party’s obligations under this Agreement.
4. Subcontractors. A&G Safety Solutions may utilize a subcontractor or other third party to perform its duties under this Agreement so long as A&G Safety Solutions remains responsible for all of its obligations under this Agreement.
5. Notices. Any notice required or permitted to be given in accordance with this Agreement will be effective if it is in writing and sent by fax, e-mail, US mail, or insured courier, return receipt requested, to the appropriate party at the address set forth on the signature page of this Agreement (or the applicable Service Order). Either party may change its address for receipt of notice by notice to the other party in accordance with this Section. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier or sending an email or fax.
6. Force Majeure. Neither party will be liable for, or be considered to be in breach of or default under this Agreement on account of, any delay or failure to perform as required by this Agreement as a result of any cause or condition beyond its reasonable control, so long as that party uses all commercially reasonable efforts to avoid or remove the causes of non-performance.
7. Governing Law. This Agreement will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Virginia, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the federal, state, and local courts in Cook County, Illinois in connection with any action arising out of or in connection with this Agreement.
8. Waiver. The waiver by either party of any breach of any provision of this Agreement does not waive any other breach. The failure of any party to insist on strict performance of any covenant or obligation in accordance with this Agreement will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of this Agreement.
9. Severability. If any part of this Agreement is found to be illegal, unenforceable, or invalid, the remaining portions of this Agreement will remain in full force and effect. If any material limitation or restriction on the use of the Services under this Agreement is found to be illegal, unenforceable, or invalid, Subscriber’s right to use the Services will immediately terminate.
10. Entire Agreement. This Agreement, including the applicable Service Orders, is the final and complete expression of the agreement between these parties regarding Subscriber’s use of the Services. This Agreement supersedes, and the terms of this Agreement govern, all previous oral and written communications regarding these matters, all of which are merged into this Agreement. This Agreement may be changed only by a written agreement signed by an authorized agent of the party against whom enforcement is sought. A&G Safety Solutions will not be bound by, and specifically objects to, any term, condition, or other provision that is different from or in addition to this Agreement (whether or not it would materially alter this Agreement) that is proffered by Subscriber in any receipt, invoice, acceptance, purchase order, confirmation, correspondence, or otherwise, regardless of A&G Safety Solutions ’s failure to object to such terms, provisions or conditions. This Agreement may be executed in multiple counterparts, and may be signed electronically or via facsimile.