These Terms of Service are by and between FireHUD, Inc., d.b.a. SlateSafety (“SlateSafety”) and the organization or individual (“Customer”) that has purchased a subscription to access and use SlateSafety’s software, applications, websites, APIs, products and/or services, including the BioTrak platform (collectively, the “Services”). SlateSafety and Customer may be referred to in this Agreement individually as a “Party” and collectively as the “Parties.”

This Agreement is effective on the earliest of: (i) the date on which Customer executes an Order Form referencing this Agreement; (ii) the date on which Customer accepts this Agreement by clicking to accept or agree within the Services; or (iii) the date on which Customer or any Authorized User uses the Services (the “Effective Date”). 

1. Definitions.

“Aggregated Statistics” means data and information related to Customer’s use of the Services and/or Smart PPE that is used by SlateSafety in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services and/or the Smart PPE.

“Agreement” means these Terms of Service, including any exhibits, schedules, and/or annexes thereto and any Order Form. 

“Authorized User” means Customer’s employees, consultants, contractors, and/or agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to the Services has been purchased hereunder. For the avoidance of doubt, an End User is not required to be an Authorized User. 

“Customer Data” means, other than Aggregated Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services. 

“Documentation” means user instructions, help information and other technical documentation regarding the Services that are made available by SlateSafety to Customer, in electronic or other form.

“End User” means any user of the Smart PPE.

“End-User Data” means all data and other information, in any form or media, collected via SlateSafety’s Smart PPE that relates to an End User and displayed, transmitted, or otherwise outputted via the Services. 

“Fees” shall mean all fees due to SlateSafety for the provision of the Services as set forth in the applicable Order Form.

“Order Form” means any purchase order or ordering document between the Customer and SlateSafety that identifies the Services licensed hereunder and any applicable licensing parameters. 

“Smart PPE” means smart personal protective equipment provided by or on behalf of SlateSafety that is used in connection with the Services. 

2. Access and Use. 

2.1 Provision of Access. Subject to the terms and conditions of this Agreement and applicable Order Form, SlateSafety hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 12.6) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer’s internal use. The total number of Authorized Users shall not exceed the number set forth in applicable Order Form, except as expressly agreed to in writing by the Parties and subject to any appropriate adjustment of the Fees payable hereunder. Customer’s right to access and use any APIs included in the Services will be subject to the restrictions and policies set forth in the Documentation or as communicated to Customer in writing from time to time.

2.2 Documentation License. Subject to the terms and conditions contained in this Agreement and applicable Order Form, SlateSafety hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 12.6) license to use the Documentation during the Term solely for Customer’s internal business purposes in connection with its use of the Services.

2.3 Reservation of Rights. SlateSafety reserves all rights not expressly granted to Customer in this Agreement. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the SlateSafety IP.

2.4 Modification or Discontinuation of the Services. SlateSafety may add, modify, or discontinue any feature, functionality or any other tool, within the Services, at its own discretion and without prior written notice, provided that if SlateSafety makes any change in the core functionality of the Services that, in its sole discretion, is materially adverse, then SlateSafety will notify Customer by posting an announcement via the Services or by sending an email.

2.5 Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, SlateSafety may monitor Customer’s use of the Services and collect and compile Aggregated Statistics. As between SlateSafety and Customer, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by SlateSafety. Customer acknowledges that SlateSafety may compile Aggregated Statistics based on Customer Data inputted into the Services. Customer agrees that SlateSafety may (i) use Aggregated Statistics for the purposes of improving, enhancing, or otherwise modifying the Services, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law, provided that neither Customer, any Authorized User, nor any End User can be identified. 

2.6 Internet Connection. A high-speed internet connection is required for proper access to and use of the Services. Customer is responsible for procuring and maintaining appropriate network connections that connect Customer’s network to the Services, including, but not limited to, “browser” software that supports protocols used by SlateSafety, such as Secure Socket Layer (SSL) protocol or other protocols accepted by SlateSafety, and for following procedures for accessing services that support such protocols. SlateSafety is not responsible for notifying Customer of any upgrades, fixes, or enhancements to any such software or for any compromise of Customer Data or End-User Data transmitted across computer networks or telecommunications facilities, including, but not limited to, the internet, which are not owned, operated, or controlled by SlateSafety. SlateSafety assumes no responsibility for the reliability or performance of any network connections as described in this Section 2.6.

2.7 Availability of Features. Features of the Services may not be available in all languages or regions. Some features of the Services may vary by region or may be restricted or unavailable from Customer’s third-party service provider. 

3. Customer Responsibilities.

3.1 General. Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Services, and shall cause Authorized Users to comply with such provisions.

3.2 Account Security. Customer will ensure that all login and other credentials that are provided to Customer and/or its Authorized Users for accessing and using the Services (“Access Credentials”) are kept confidential. Customer will be solely responsible for all use of the Services through any Access Credentials, whether or not Customer has knowledge of, or consented to, such use. Customer will notify SlateSafety immediately upon becoming aware of any unauthorized use of any Services through any unauthorized use of Access Credentials. 

3.3 Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, and shall not permit any Authorized Users to, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) create any source code or other software based on the Services that is designed to notify or alert an individual of any health or biometric vitals or information; (vi) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vii) falsely imply any sponsorship or association with SlateSafety; (viii) use the Services to send unsolicited or unauthorized junk mail, spam, pyramid schemes, or other forms of duplicative or unsolicited messages; (ix) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services or components thereof; (x) use the Services to knowingly post, transmit, upload, link to, send, or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (xi) use the Services to store or transmit any “protected health information” as that term is defined under applicable law, including 45 C.F.R. 160.103; or (xii) use the Services to knowingly post transmit, upload, link to, send, or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software.

3.4 Suspension. Notwithstanding anything to the contrary in this Agreement, SlateSafety may suspend Customer’s and any Authorized User’s access to any portion or all of the Services if: (i) SlateSafety reasonably determines that (A) there is a threat or attack on any of the Services; (B) Customer’s or any Authorized User’s use of the Services disrupts or poses a security risk to the Services or to any other customer or vendor of SlateSafety; (C) Customer, or any Authorized User, is using the Services for fraudulent or illegal activities; or (D) SlateSafety’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (ii) any vendor of SlateSafety has suspended or terminated SlateSafety’s access to or use of any third-party services or products required to enable Customer to access the Services; (iii) SlateSafety is required to perform upgrades and/or maintenance to the Service or reasonably desires to perform upgrades and/or maintenance; (iv) an circumstance beyond the reasonable control of SlateSafety occurs resulting in unplanned unavailability of the Service, including, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures, or acts undertaken by third parties, such as denial of service attacks; (v) upon any violation by Customer or its Authorized Users of this Agreement or the applicable Order Form; or (vi) in accordance with Section 4.1. SlateSafety shall use commercially reasonable efforts to provide written notice of any suspension to Customer and to provide updates regarding resumption of access to the Services following such suspension. SlateSafety shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the suspension is cured. SlateSafety will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of any suspension of the Services. Customer acknowledges that any suspected fraudulent, abusive, or illegal activity by Customer or its Authorized users may be referred to law enforcement authorities at SlateSafety’s sole discretion. 

4. Fees and Payment. 

4.1 Fees. Unless specified otherwise in the applicable Order Form, Customer shall make all payments of the Fees and any other amounts due hereunder in US dollars within thirty (30) days of the invoice date, provided the initial payment under each Order Form shall be due within thirty (30) days of the start date of the Initial Subscription Term. If Customer fails to make any payment when due, without limiting SlateSafety’s other rights and remedies: (i) SlateSafety may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; (ii) Customer shall reimburse SlateSafety for all costs incurred by SlateSafety in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, SlateSafety may suspend Customer’s and its Authorized Users’ access to any portion or all of the Services until such amounts are paid in full. 

4.2 Subscription Changes. Customer may upgrade its subscription plan at any time during the Subscription Term, including increasing the number of Authorized Users, provided any increase in Fees due to such upgrade or increase in Authorized Users will apply on a prospective basis beginning on the date in which such upgrade or increase is implemented. Customer may also downgrade its subscription plan at any time during the Subscription Term, provided, however, SlateSafety will not issue any refunds or credits for such downgrade and any changes in Fees due will not be effective until the start of the next Renewal Subscription Term. Customer acknowledges that any downgrade may cause loss of content, features, or functionality of the Services, and SlateSafety does not accept any liability for such loss. SlateSafety reserves the right to notify Customer about certain pricing and plans if Customer maintains an exceptionally high number of Authorized Users, an unusually high monthly product, release, or feature ratio per Authorized User, or other excessive stress on the Services. 

4.3 Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on SlateSafety’s income.

4.4 Payment by Credit Card. SlateSafety may use third-party electronic payment processors and financial institutions (“Payment Processors”) to process payments of Fees. The information that SlateSafety provides to and receives from these Payment Processors and the manner in which such information is used and disclosed is described in further detail in the SlateSafety’s Privacy Policy located at https://slatesafety.com/privacy-policy/. Customer authorizes SlateSafety, as necessary, to instruct such Payment Processors to handle payments and Customer agrees that SlateSafety may give such instructions on Customer’s behalf to the applicable Payment Processor. Customer further agrees to be bound by all terms and conditions of each applicable Payment Processor. 

5. Confidential Information

From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, and whether or not marked, designated, or otherwise identified as “confidential” (collectively, “Confidential Information”). Confidential Information does not include information that, at the time of disclosure is: (i) in the public domain; (ii) known to the receiving Party at the time of disclosure as evidenced by written documentation; (iii) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (iv) independently developed by the receiving Party as evidenced by written documentation. The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except to the receiving Party’s employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (A) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (B) to establish a Party’s rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party’s Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five years from the date first disclosed to the receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

6. Intellectual Property Ownership; Data. 

6.1 SlateSafety IP. The Services and Documentation, and their entire contents, features, and functionality, including service marks, any and all related technology, and any modifications, customizations, enhancements or derivative works thereof (collectively, “SlateSafety IP”) are the property of SlateSafety, its licensors, or other providers of such material, and may be protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws and treaties. Customer agrees to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Services. As between Customer and SlateSafety, SlateSafety retains all right, title and interest, including all intellectual property rights, in and to SlateSafety IP.

6.2 Prohibited Acts. Customer shall not: (i) take any action that interferes with any of SlateSafety IP; (ii) challenge any right, title or interest of acre security in or to SlateSafety IP; (iii) make any claim or take any action adverse to SlateSafety’s ownership of SlateSafety IP; (iv) engage in any action that tends to disparage, dilute the value of, or reflect negatively on the Services or SlateSafety itself; or (v) alter, obscure or remove any of acre security’s proprietary rights notices, including any patent markings or copyright notices, placed on the Services.

6.3 Customer Data and End-User Data. 

(i) SlateSafety acknowledges that, as between SlateSafety and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data and End-User Data. Customer represents, warrants, and covenants to SlateSafety that Customer owns or otherwise has and will have the necessary rights and consents in and relating to the Customer Data and End-User Data. Customer hereby grants to SlateSafety a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and End-User Data and perform all acts with respect to the Customer Data and End-User Data as may be necessary for SlateSafety to provide the Services to Customer or to perform any requests of the Customer.

(ii) SlateSafety shall use the Customer Data and End-User Data solely as is necessary to provide the Services or as otherwise necessary to perform a requests of the Customer. SlateSafety will maintain and enforce administrative, physical and technical security procedures and safeguards with respect to access and maintenance of the Customer Data and End-User Data (A) that are no less rigorous than accepted industry practices applicable to such information, (B) that are in accordance with all applicable laws, and (C) that provide reasonably appropriate technical and organization safeguards against accidental, unauthorized, or unlawful destruction, loss, alteration, disclosure, or access to such Customer Data and End-User Data.  

(iii) SlateSafety shall treat all Customer Data and End-User Data in accordance with its Privacy Policy as provided at https://slatesafety.com/privacy-policy/. SlateSafety may revise its Privacy Policy without notice by posting the amended Privacy Policy on its website. Customer agrees to periodically review the website to be aware of any changes. 

(iv) Upon termination or expiration of this Agreement or an Order Form, unless otherwise prohibited by applicable law, SlateSafety reserves the right to delete all Customer Data and End-User Data associated with this Agreement or terminated Order Form(s), as applicable, in SlateSafety’s normal course of operation. Customer Data and End-User Data may not be recoverable upon termination of Customer’s subscription account. 

6.4 Feedback. If Customer or any of its employees or contractors sends or transmits any communications or materials to SlateSafety by mail, email, telephone, or otherwise, suggesting or recommending changes to the SlateSafety IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), SlateSafety is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to SlateSafety on Customer’s behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and SlateSafety is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although SlateSafety is not required to use any Feedback.

7. Third-Party Products and Services.

The Services may contain features designed to interface with applications or services provided or made available by third parties (“Third-Party Services”). In order to use a feature in connection with a Third-Party Service, Customer must have a license from the provider of the relevant Third-Party Service. If the Third-Party Services are no longer available or if the applicable third-party provider no longer allows the Third-Party Services to interface with the Services, then such features will no longer be available or function in connection with the Services. SlateSafety disclaims all warranties, indemnities, obligations, and other liabilities in connection with any Third-Party Service, including any interface or integration in connection with any Third-Party Service, and Customer irrevocably waives any claim against SlateSafety with respect to any Third-Party Services. 

8. Warranties.

8.1 Limited Warranty. SlateSafety warrants that the Services will perform in material conformance with the Documentation supplied by SlateSafety. For any breach of this warranty, SlateSafety may, at its sole option, (i) repair the Services or (ii) replace the Services with functionally equivalent software. The foregoing remedies are Customer’s sole remedies and Customer’s sole liability under this Section 8.1. This warranty does not apply to: (A) any combination of the Services with a third party product; (B) any modification of the Services other than by SlateSafety or authorized by SlateSafety; (C) Customer’s or any third party’s negligence, abuse, misapplication or misuse of the Services, including any use of the Services other than as specified in the Documentation; or (D) Customer’s breach of any provision of this Agreement. The foregoing does not apply to the Smart PPE, and to the extent the Customer is entitled to a warranty for purchased Smart PPE, such warranty will be provided in separate documentation. 

8.2 DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 8.1, ALL SERVICES AND SLATESAFETY MATERIALS ARE PROVIDED “AS IS.” SLATESAFETY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, SLATESAFETY MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR SLATESAFETY MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.

8.3 NO RELIANCE ON HEALTH INFORMATION. SLATESAFETY MAKES NO REPRESENTATION OR WARRANTY OF ANY KIND THAT THE INFORMATION PROVIDED VIA THE SERVICES, INCLUDING ANY HEALTH AND/OR BIOMETRIC DATA, IS ACCURATE. THE INFORMATION PROVIDED VIA THE SERVICES, INCLUDING ANY HEALTH AND/OR BIOMETRIC DATA, AND ANY ACCOMPANYING HARDWARE, INCLUDING THE SMART PPE, ARE NOT INTENDED TO MATCH THAT OF MEDICAL DEVICES OR BE CONSTRUED AS PROVIDING ANY HEALTH ADVICE. THE INFORMATION PROVIDED VIA THE SERVICES IS NOT INTENDED TO BE USED TO DIAGNOSE, TREAT, CURE, OR PREVENT ANY DISEASE OR OTHER HEALTH CONDITION. SLATESAFETY IS NOT RESPONSIBLE FOR THE ACCURACY, RELIABILITY, AVAILABILITY, OR CORRECT USE OF INFORMATION PROVIDED VIA THE SERVICES. BEFORE ENGAGING IN ANY EXERCISE OR PHYSICAL ACTIVITY THAT USES THE SERVICES AND/OR SMART PPE IN ANY MANNER, ALL END USERS MUST CONSULT THEIR PHYSICIAN. ALL END USERS MUST BE CAREFUL AND ATTENTIVE WHEN EXERCISING OR ENGAGING IN PHYSICAL ACTIVITY. ALL END USERS MUST STOP EXERCISING OR ENGAGING IN PHYSICAL ACTIVITY IMMEDIATELY IF THEY FEEL PAIN, FAINT, DIZZY, EXHAUSTED, OR SHORT OF BREATH. BY EXERCISING OR ENGAGING IN PHYSICAL ACTIVITY, AN END USER ASSUMES INHERENT RISK INCLUDING INJURY. CUSTOMER REPRESENTS AND WARRANTS THAT IT HAS COMMUNICATED ALL INFORMATION AND RISKS SET FORTH IN THIS SECTION 8.3 TO ALL END USERS. 

9. Indemnification. 

9.1 SlateSafety Indemnification. 

1. SlateSafety shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable attorneys’ fees) incurred by Customer resulting from any third-party claim, suit, action, or proceeding alleging that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights, provided that Customer promptly notifies SlateSafety in writing of the claim, cooperates with SlateSafety, and allows SlateSafety sole authority to control the defense and settlement of such claim. 
2. If such a claim is made or appears possible, Customer agrees to permit SlateSafety, at SlateSafety’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If SlateSafety determines that neither alternative is reasonably available, SlateSafety may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer, and provide a refund to Customer of any prepaid, unused Fees. 
3. This Section 9.1 will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by SlateSafety or authorized by SlateSafety in writing; (B) modifications to the Services not made by SlateSafety; or (C) Customer Data and/or End-User Data; or (D) Third-Party Services. 

9.2 Customer Indemnification. Customer shall indemnify, hold harmless, and, at SlateSafety’s option, defend SlateSafety from and against any losses, damages, liabilities, costs (including reasonable attorneys’ fees) resulting from any third-party claim, suit, action, or proceeding arising from or in connection with (i) an allegation that the Customer Data and/or End-User Data, or any use of the Customer Data and/or End-User Data in accordance with this Agreement, infringes or misappropriates such third party’s intellectual property rights; (ii) Customer’s or any Authorized User’s negligence or willful misconduct; (iii) use of the Services in a manner not authorized by this Agreement; (iv) use of the Services in combination with data, software, hardware, equipment, or technology not provided by SlateSafety or authorized by SlateSafety in writing; or (v) modifications to the Services not made by SlateSafety. Customer may not settle any third-party claim, suit, action, or proceeding against SlateSafety unless SlateSafety consents to such settlement, and further provided that SlateSafety will have the right, at its option, to defend itself against any such third-party claim or to participate in the defense thereof by counsel of its own choice. 

9.3 Sole Remedy. THIS SECTION 9 SETS FORTH CUSTOMER’S SOLE REMEDIES AND SLATESAFETY’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.  

10. LIMITATION OF LIABILITY. 

IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (I) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (II) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (III) LOSS OF GOODWILL OR REPUTATION; (IV) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (V) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER SLATESAFETY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. EXCEPT FOR AN INTENTIONAL BREACH OF ITS CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5 AND ITS INDEMNITY OBLIGATIONS SET FORTH IN SECTION 9.1, IN NO EVENT WILL SLATESAFETY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID TO SLATESAFETY UNDER THIS AGREEMENT IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. CUSTOMER ACKNOWLEDGES AND AGREES THAT THE ESSENTIAL PURPOSE OF THIS SECTION 10 IS TO ALLOCATE THE RISKS UNDER THIS AGREEMENT BETWEEN THE PARTIES AND LIMIT POTENTIAL LIABILITY GIVEN THE FEES PAID BY CUSTOMER, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF SLATESAFETY WERE TO ASSUME ANY LIABILITY OTHER THAN AS SET FORTH HEREIN. SLATESAFETY HAS RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO PROVIDE CUSTOMER THE RIGHTS TO ACCESS AND USE THE SERVICES PROVIDED FOR IN THIS AGREEMENT.

11. Term and Termination. 

11.1 Term of Agreement. This Agreement shall commence on the Effective Date and shall continue until all Order Forms have expired or been terminated pursuant to this Agreement or the applicable terms of the Order Form (“Term”).

11.2 Subscription Term. Each Order Form shall set forth the start date for the initial subscription term, which shall continue for a period of twelve (12) months, unless otherwise indicated in the applicable Order Form (“Initial Subscription Term”). Upon expiration of the Initial Subscription Term, the Order Form will automatically renew for additional successive one (1) year periods (each, a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”) unless a Party provides the other Party written notice of its intention not to renew at least thirty (30) days prior to the end of the Initial Subscription Term or then-current Renewal Subscription Term. Unless otherwise set forth in the applicable Order Form, all Fees due for any Renewal Subscription Term shall be SlateSafety’s then-current prices for the applicable subscription plan. 

11.3 Termination. In addition to any other express termination right set forth in this Agreement:

1. either Party may terminate this Agreement or an Order Form, effective on written notice to the other Party, if the other Party breaches this Agreement or the applicable Order Form, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; or
2. either Party may terminate this Agreement or an Order Form, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

11.4 Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement or an Order Form, Customer shall immediately discontinue use of the SlateSafety IP and, without limiting Customer’s obligations under Section 5, Customer shall delete, destroy, or return all copies of the SlateSafety IP and certify in writing to the SlateSafety that the SlateSafety IP has been deleted or destroyed. No expiration or termination of this Agreement or any Order Forms will affect Customer’s obligation to pay all Fees due for the totality of the then-current Initial Subscription Term or Renewal Subscription Term or entitle Customer to any refund, provided that if Customer terminates this Agreement or an Order Form pursuant to Section 11.3, SlateSafety shall provide Customer a refund of any prepaid, unused Fees. 

11.5 Survival. All provisions that by their nature are intended to survive termination or expiration of this Agreement shall survive, including without limitation, Sections 1, 5, 6, 7, 8, 9, 10, 11.4, and 12 survive any termination or expiration of this Agreement.

12. Miscellaneous. 

12.1 Force Majeure. SlateSafety shall not be liable for delayed or inadequate performance of its obligations hereunder to the extent caused by a condition that is beyond SlateSafety’s reasonable control, including, without limitation, civil disturbance, acts of terrorism or war, labor conditions, governmental actions, interruption or failure of the Internet or any utility service, failures of third-party hosting services, and denial of service attacks. SlateSafety shall be relieved from its obligations as long as the applicable force majeure event lasts and hinders the performance of said obligations. SlateSafety shall promptly notify Customer and make reasonable efforts to mitigate the effects of any force majeure event.

12.2 Publicity. Upon Customer’s written consent, SlateSafety may use Customer’s name, logo, or other identifier to identify Customer as a customer of SlateSafety on its website, marketing materials, or otherwise. 

12.3 Governing Law; Jurisdiction. This Agreement and all matters arising out of or relating to this Agreement shall be governed by, and construed in accordance with, the laws of the State of Georgia, without regard to the conflict of laws’ provision thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Georgia. With respect to any action arising out of or relating to this agreement, each of the Parties irrevocably: (i) agrees and consents to be subject to the exclusive jurisdiction of the state and federal courts in Atlanta, Georgia; and (ii) waives any objection which it may have at any time to the laying of venue of any such action brought in any such court, waives any claim that such action has been brought in an inconvenient forum, and further waives the right to object, with respect to such action, that such court does not have any jurisdiction over such Party, provided that such consent to jurisdiction is for the purpose referred to herein and will not be deemed to be a general submission to the jurisdiction of such courts or any other courts for purposes outside the scope of any such action.

12.4 Limitation on Time to File Claims. ANY CAUSE OF ACTION OR CLAIM CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

12.5 Severability. In the event that any provision of this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any jurisdiction, such provision shall be ineffective as to such jurisdiction to the extent of invalidity, illegality or unenforceability without invalidating or affecting the remaining provisions hereof or affecting the validity, legality or unenforceability of such provisions in any other jurisdiction.

12.6 Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of SlateSafety. Any purported assignment or delegation in violation of this Section will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns. 

12.7 Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to seek equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise. 

12.8 Export Regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), that prohibit or restrict the export or re-export of the Services or any Customer Data and/or End-User Data outside the U.S. Customer shall not access or use the Services if Customer is located in any jurisdiction in which the provision of the Services is prohibited under United States or other applicable laws or regulations (“Prohibited Jurisdiction”), and Customer shall not provide access to the Services to any government, entity, or individual located in such Prohibited Jurisdiction. Customer represents and warrants that (i) it is not named on any U.S. government list of persons or entities prohibited from receiving U.S. exports, or transacting with any U.S. person, (ii) it is not a national of, or a company registered in, any Prohibited Jurisdiction, (iii) it will not permit Authorized Users to access or use the Service in violation of any U.S. or other applicable export embargoes, prohibitions, or restrictions, and (iv) it will comply with all applicable laws regarding the transmission of technical data exported from the United States and the country in which Customer and its Authorized Users are located.

12.9 Interpretation. The Parties have participated jointly in the negotiation and drafting of this Agreement.  If an ambiguity or question of intent or interpretation arises, then this Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any of the provisions of this Agreement.

12.10 Notices. All notices, consents, waivers, and other communications under this Agreement must be in writing and will be deemed to have been duly given when (i) delivered by hand (with written confirmation of receipt), (ii) sent by email, or (iii) when received by the addressee, if sent by a nationally recognized overnight delivery service, in each case to the appropriate addresses or email set forth below, and, in the case of Customer, the address and email set forth in the Order Form:

If to SlateSafety:

1701 Oakbrook Drive

Norcross, GA 30093

Attn: Zack Braun

support@slatesafety.com

12.11 Headings. Headings used in this Agreement are for reference purposes only and are not part of this Agreement. No interpretation or construction of this Agreement shall be derived from or based on headings. The insertion of headings herein and the division of this Agreement into articles and sections are for convenience of reference only and shall not affect the interpretation hereof. The words “hereof”, “hereunder” and similar expressions refer to this Agreement and not any particular section hereof; “article”, “section”, and “subsection” mean and refer to the specified article, section or subsection of this Agreement.

12.12 Independent Contractor. The Parties acknowledge that, except as expressly set out in this Agreement to the contrary, each Party is entering into this Agreement as an independent contractor and nothing in this Agreement shall be interpreted or applied so as to make the relationship of any of the Parties that of partners, joint venturers or anything other than independent contractors.

12.13 No Third-Party Beneficiaries. Nothing expressed or referred to in this Agreement will be construed to give any third parties any legal or equitable right, remedy, or claim under or with respect to this Agreement or any provision of this Agreement. 

12.14 Entire Agreement. This Agreement, including the Privacy Policy provided by SlateSafety whether via its website or otherwise, supersedes all prior agreements and understandings, whether written or oral, between the Parties with respect to its subject matter, and constitutes a complete and exclusive statement of the terms of the agreement between the Parties with respect to its subject matter.  This Agreement will control over any standard boilerplate terms included on any document provided by Customer or a third party acting on Customer’s behalf to SlateSafety, including but not limited to purchase orders or order forms. Any such terms are expressly rejected by SlateSafety and are not part of this Agreement. 

12.15 Waiver. SlateSafety’s failure to enforce at any time any provision of this Agreement does not constitute a waiver of such provision or any other provision of the Agreement.

12.16 Changes. SlateSafety reserves the right to make changes or modifications to this Agreement from time to time with or without notice. SlateSafety will use commercially reasonable efforts to notify Customer via e-mail or the Services of any material changes or modifications to the Agreement at least seven (7) days prior to such changes being effective. All revised versions of this Agreement will be available at https://www.slatesafety.com/terms-of-service. Customer’s or its Authorized Users’ use of the Services seven (7) days following the posting of the revised Agreement constitutes acceptance of changes.