Risk Alive – Terms & Conditions
4Effective as of December 15th, 2022
1.1 In addition to any terms defined in the Order and elsewhere in these terms and conditions (the “Agreement”), capitalized terms used in this Agreement are defined in Schedule A below.
2. Access and Use
2.1 Grant of Rights. Subject to the terms of this Agreement, Risk Alive grants Customer, its Affiliates, and their respective Authorized Users a non-exclusive, worldwide, fee-bearing, non-transferable (subject to Section 16.1 Assignment), non-sub-licensable and limited right to access and use the Software and Risk Alive Content for the Term solely for non-commercial, internal business purposes.
2.2 License to Customer Content. Customer hereby grants Risk Alive a non-exclusive, worldwide, fee and royalty free, non-transferrable (subject to Section 16.1 Assignment), and sub-licensable right and license to host, copy, display and use Customer Content as may be necessary for Risk Alive to provide the Services. Subject to the limited rights and license granted Risk Alive to Customer Content under Sections 2.2 and 2.3, Customer reserves all other rights, title and interests in Customer Content.
2.3 License to Data Sets. In addition and notwithstanding anything to the contrary in this Agreement, Customer hereby grants Risk Alive a non-exclusive, worldwide, fee and royalty free, perpetual, non-transferrable (subject to Section 16.1 Assignment) and sub-licensable right and license to use the Data Sets, provided that any such Data Sets have been fully de-identified and are incapable of re-identifying Customer, its Affiliates, or their respective Authorized Users.
2.4 Analytics Learnings and Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges and agrees that Risk Alive may (i) use the skills and learnings acquired during the delivery of the Services (“Analytics Learnings”) in any manner, including, without limitation, for the performance of similar services for third parties, provided that Risk Alive remains compliant with Section 6 (Confidentiality); (ii) monitor Customer’s, its Affiliates’ and their respective Authorized Users’ use of the Site and Services; (iii) collect and compile Aggregated Statistics; and (iv) use such Aggregated Statistics in any manner, including, without limitation, to improve the Site and Services.
2.5 Feedback. If any Authorized User provides suggestions, ideas, enhancement requests, corrections, or other feedback to Risk Alive concerning the Site or Services (“Feedback”), Risk Alive may use, disclose and exploit such Feedback without restriction or any obligation to account to Customer or the individual providing the Feedback. Risk Alive is not required to consider or implement any Feedback.
2.6 Credentials. Customer, its Affiliates and their respective Authorized Users will take all steps to ensure the protection of the confidentiality of all Access Credentials, and for restricting access to computers, devices and systems. Customer, its Affiliates and their respective Authorized Users will not disclose or share Access Credentials or allow any other person or entity to access Customer’s, its Affiliates’ or their respective Authorized Users’ account(s). Customer agrees to notify Risk Alive immediately at email@example.com if Customer, its Affiliates, or their respective Authorized Users suspect or become aware of any unauthorized use of Customer’s, its Affiliates’, or their respective Authorized Users’ Access Credentials or account(s), or any other security breach involving the Site, Software, or Customer’s, its Affiliates’ or their respective Authorized Users’ account(s). Customer is responsible for all activities that occur under Customer’s, its Affiliates’, or their respective Authorized Users’ Access Credentials and account(s), whether or not such activities have been authorized by Customer and even if Risk Alive has been advised of such activities.
2.7 Modifications. Customer acknowledges and agrees that Risk Alive may Modify the Site and Software from time to time provided that the Modifications do not materially degrade the Software.
2.8 Support. Information is available in the Help Centre (found at: https://intercom.help/riskalive/en) for Authorized Users in the form of instruction on the features and functionality of the Software (the “Documentation”). In addition, in-application live technical support to answer questions and troubleshoot technical issues in connection with the Software is available for Authorized Users, Monday through Friday, 8 AM to 5 PM, MST.
2.9 Suspension of Access. Any use of the Site or Software by Customer, its Affiliates or their respective Authorized Users in breach of this Agreement that, in Risk Alive’s judgment (acting in its sole discretion), threatens the security, integrity or availability of the Site or Software or Risk Alive IP may result in Risk Alive immediately, without notice or liability to Risk Alive, suspending access to the Site and Software.
3. FACILITATIONs; TRAINING; IN-PERSON SERVICES
3.1 Facilitation. If Risk Alive is engaged to provide facilitation services to Customer or its Affiliates (a “Facilitation”) in relation to a particular activity, including but not limited to, a Hazard and Operability Analysis (HAZOP) or other Process Hazards Analyses (PHA) or Process Safety Management Assessment (any such activity, an “Assessment”), Customer acknowledges and agrees that:
(a) Risk Alive is solely engaged to help facilitate the discussion and provide the Deliverables; the Assessment, including the completeness, accuracy, effectiveness, compliance with applicable laws, and outcome thereof, remains the sole responsibility of the Customer and its Affiliates;
(b) Risk Alive will use commercially reasonable efforts to record notes from the Facilitation and compile such notes in the Deliverables; and
(c) the Deliverables are provided to Customer (or its Affiliate) for its consideration and its sole decision to implement, and Customer (or its Affiliate) is solely responsible for reviewing and approving the Deliverables, the accuracy and completeness of the information and data therein, and the outcomes of any decisions based on the Deliverables.
3.2 Training. If Risk Alive is engaged to provide training services to Customer or its Affiliates (“Training”), Customer acknowledges and agrees that:
(a) the Training is provided to Customer for information purposes only and Customer is solely responsible for implementation and application of the Training and any actions or decisions made therefrom; and
(b) if Customer personnel attend at Risk Alive’s or its Affiliates’ facility, Customer shall ensure that all Customer personnel comply with any reasonable security and health and safety instructions communicated by Risk Alive or its Affiliates to Customer or Customer personnel.
3.3 Health, Safety and Security. To the extent Risk Alive personnel attend at a Customer or Customer Affiliate facility (“In-person Services”), (i) Risk Alive shall comply with, and ensure that all Risk Alive personnel comply with, all rules, regulations, and policies of Customer that are generally applicable to Customer’s onsite vendors and that are communicated to Risk Alive, including security procedures and general health and safety practices, procedures, and requirements, and (ii) Customer must provide a safe and suitable facility for the performance of the In-person Services, including compliance with applicable laws and industry standards for health, safety, and security.
3.4 Schedule Changes and Cancellation. Customer may request to reschedule the date of a Facilitation, Training, and/or In-person Services (a “Session”), provided that such request is in writing and received by Risk Alive no less than fourteen (14) days prior to the start date of the applicable Session. If such request is received between fourteen (14) days and seven (7) days of the Session, Customer shall pay an additional rescheduling fee equal to ten percent (10%) of the applicable Fees; if Customer cancels during this time period, Customer shall pay Risk Alive a cancellation fee of 50% of the Fees. Customer shall pay Risk Alive 100% of the Fees for a Session if Customer reschedules or cancels less than seven (7) days before the Session is scheduled to commence, or after the Session has commenced. The parties will use commercially reasonable efforts to reschedule any Session so requested at times acceptable to both parties.
4.1 Customer is solely responsible for consideration, assessment, and implementation of, and reliance upon, the Deliverables, Risk Alive Content, or any other output of the Services (“Customer Implementation”). TO THE FULLEST EXTENT PERMITTED BY LAW, CUSTOMER AGREES THAT IT AND ITS AFFILIATES WILL NOT PURSUE ANY CLAIM, SUIT, ACTION OR PROCEEDING OF ANY KIND, NATURE OR CHARACTER WHATSOEVER AGAINST RISK ALIVE OR ITS AFFILIATES, SUBCONTRACTORS OR PERSONNEL, IN ANY COURT, ADMINISTRATIVE AGENCY, ARBITRAL FORUM, OR OTHER TRIBUNAL, ARISING OUT OF ANY CUSTOMER IMPLEMENTATION.
5. Fees and Payment
5.1 Payment Terms. Customer will pay Risk Alive the fees specified in the Order (“Fees”) in accordance with the payment terms in the Order. If Customer fails to pay the Fees when due, Risk Alive may: (i) suspend Customer’s access to or Risk Alive’s provision of the Services until such invoice is paid in full; or (ii) terminate this Agreement. All payment obligations are non-cancellable and, except as expressly provided in this Agreement, all Fees are non-refundable.
5.2 Additional Services. Customer may, at any time during the Term, purchase additional services that Risk Alive may offer (in its sole discretion) by entering into an agreement for the same at Risk Alive’s then current pricing and on Risk Alive’s standard terms and conditions for such services.
5.3 Set-off and Withholding. Customer agrees to pay the full amount of any Fees due to Risk Alive under the Agreement and will not set-off, counterclaim or otherwise withhold any amount due to Risk Alive for any reason.
5.4 Taxes. All quoted Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, excise, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with all Fees due under the Agreement. If Risk Alive is legally obligated to pay or collect Taxes for which Customer is responsible under this Section 5.4, then Risk Alive will include and collect such Taxes from Customer, unless Customer provides Risk Alive with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Risk Alive is solely responsible for all taxes assessable against Risk Alive based on its revenues, assets (including real property) and personnel.
6. Risk Alive Intellectual Property
6.1 Title and full ownership of the Risk Alive IP will at all times remain with Risk Alive. Except for the limited rights expressly granted under this Agreement, Risk Alive reserves all rights, title and interests in and to the Risk Alive IP and nothing in this Agreement grants, by implication, estoppel, or otherwise, any intellectual property rights or other right, title or interest in or to the Risk Alive IP to Customer, its Affiliates, their respective Authorized Users or any other third party.
7.1 Confidential Information. Prior to or during the Term, one party (“Discloser”) may disclose non-public information (“Confidential Information”) to the other party (“Recipient”). Examples of Confidential Information include non-public information included in the Customer Content, information included in security reports, questionnaires or other materials relating to privacy or security, and pricing. Information is still Confidential Information even if it is: (i) not marked confidential; (ii) disclosed before or after the effective date of this Agreement; or (iii) oral, visual, electronic, written or in any other format.
7.2 Restrictions on Use and Disclosure. The Recipient will only use the Confidential Information for the purposes of this Agreement. The Recipient will protect the Confidential Information from any unauthorized access, use or disclosure using the same degree of care that the Recipient uses to protect its own confidential information, but in no event less than a reasonable degree of care. The Recipient may share the Confidential Information with its employees, officers, directors, agents and professional advisors (“Representatives”), provided they: (i) need to know the Confidential Information; and (ii) are bound to the Recipient by confidentiality obligations comparable to those set out in this Agreement. The Recipient is responsible for any breach of this Agreement by its Representatives. The Recipient may disclose the Confidential Information if required by law, provided that the Recipient: (i) gives the Discloser as much notice as possible prior to the disclosure to the extent practicable and permitted by law; and (ii) reasonably cooperates with the Discloser, at the Discloser’s cost, to seek a protective order or otherwise prevent disclosure.
7.3 Deletion of Confidential Information. Recipient will delete all Confidential Information in its possession, custody, or control within 30 days’ of a request by Discloser during the Term or automatically on 30 days of termination or expiration of this Agreement. However, the Recipient will not be obligated to erase Confidential Information that is contained in an archived computer system backup in accordance with its security and/or disaster recovery procedures or for archival or record retention purposes as required by applicable law, subject to compliance with the confidentiality obligations of this Agreement for so long as any such copies are retained.
7.4 Non-Disclosure Agreement. To the extent that Customer has entered into a non-disclosure agreement with Risk Alive in contemplation of this Agreement (“NDA”): (i) all Confidential Information disclosed under that NDA is deemed to have been disclosed under this Agreement; (ii) this Agreement is deemed to replace and supersede the NDA; and (iii) the NDA is hereby terminated.
8. Customer Responsibilities
8.1 Responsibilities. Customer acknowledges and agrees: (i) it will comply with, and will be responsible for its Affiliates and its and their respective Authorized Users’ compliance with, this Agreement and applicable laws; and (ii) it is responsible for the legality, completeness, accuracy, quality and suitability of all of Customer Content and Customer Implementation.
8.2 Usage Restrictions. Customer will not (i) sell, resell, license, sublicense, distribute, make available, rent or lease access to and use of the Site or Services, or include access to or use of the Site or Services in a service bureau or outsourcing offering, (ii) use the Site or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy, personality or intellectual property rights, (iii) upload to, or transmit from, the Site or Services any data, file, software, or link that contains or redirects to a harmful code or other harmful component, (iv) interfere with or disrupt the integrity or performance of the Site or Services or any third party use of the Site or Services, (v) attempt to gain unauthorized access to the Site or Services or related systems or networks, (vi) permit direct or indirect access to or use of the Site or Services in a way that circumvents access or use restrictions to Risk Alive IP, except as permitted under the Agreement, (vii) modify, copy, or create derivative works based on the Site or Services, or any part, feature, function or user interface thereof, (viii) frame or mirror any part of the Site or Services other than framing on Customer’s own intranets or otherwise for Customer’s own internal business purposes, (viii) reverse engineer, decompile, hack, disable, or disassemble the Site or Services or any part thereof or any data contained therein, (ix) do anything that will reveal or generate the source code of the Site or Services, (x) grant access to, disclose or share access of Access Credentials with any third party, (xi) access the Site or Services to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Site or Services, (3) copy any ideas, features, functions, or graphics of the Site or Services, or (4) determine whether the Services are within the scope of any patent, or (xii) authorize, permit or encourage any person or third party to do any of the above.
9. Representations and Warranties
9.1 Risk Alive’s Representations and Warranties. Risk Alive represents and warrants that:
(a) the Software will substantially conform to the Documentation;
(b) the Services will be performed in a workmanlike and professional manner by appropriately qualified personnel; and,
(c) it has used and will continue to use commercially reasonable efforts to prevent the occurrence of and eliminate Malicious Code from the Site and Software and, where any such Malicious Code is found, will use commercially reasonable efforts to remedy the same and to reduce interruptions to the Customer that may result from such Malicious Code.
9.2 Customer’s Representations and Warranties. Customer represents and warrants that:
(a) it, its Affiliates and its Authorized Users shall perform their obligations under this Agreement in conformity with the Agreement and applicable laws; and
(b) it has the authority and all necessary legal rights to provide Customer Content to Risk Alive and for Risk Alive to use the Customer Content as set out in this Agreement.
10. Disclaimer of Warranties
10.1 EXCEPT AS EXPRESSLY SET OUT IN SECTION 9.1 ABOVE, THE SITE AND SERVICES ARE MADE AVAILABLE ON AN “AS-IS”, “AS AVAILABLE”, AND “WHERE AS” BASIS. RISK ALIVE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, ACCURACY, QUALITY AND NON-INFRINGEMENT. WITHOUT LIMITATION, RISK ALIVE DOES NOT WARRANT THAT:
(a) THE SITE OR SERVICES ARE SUITABLE FOR OR WILL MEET CUSTOMER’S OR ITS AFFILIATES’ REQUIREMENTS;
(b) THE SITE OR SERVICES ARE FREE OF DEFECTS, HARMFUL CODE, VIRUSES OR MALWARE;
(c) THE SITE OR SERVICES WILL BE FREE FROM INTERRUPTION;
(d) THE SITE OR SERVICES WILL BE ERROR-FREE; OR
(e) ALL DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED.
10.2 THE DISCLAIMERS IN THIS SECTION WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT. CUSTOMER MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, ANY STATUTORILY REQUIRED WARRANTIES UNDER APPLICABLE LAW, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD AND MAXIMUM EXTENT PERMITTED BY LAW.
11. Limitation of Liability
11.1 CONSEQUENTIAL DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT SHALL RISK ALIVE BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY CONSEQUENTIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR SPECIAL LOSSES (INCLUDING BUT NOT LIMITED TO LOSS OF DATA, PROFITS, REVENUE, ECONOMIC ADVANTAGE, USE, REPUTATION OR GOODWILL OR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) EVEN IF RISK ALIVE HAS BEEN ADVISED OF THE LIKELIHOOD OF SUCH LOSSES OR SUCH LOSSES WERE OTHERWISE FORESEEABLE.
11.2 LIMITATION OF LIABLITY. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WILL RISK ALIVE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE LIABILITY AROSE.
11.3 ASSUMPTION OF RISK. CUSTOMER FURTHER ACKNOWLEDGES THAT (A) CUSTOMER AND ITS AFFILIATES’ ACCESS TO AND USE OF THE SITE AND SERVICES UNDER THE AGREEMENT IS MADE POSSIBLE ONLY BY THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY SPECIFIED HEREIN AND (B) SUBSTANTIAL FEES WOULD BE PAYABLE BY CUSTOMER IF ANY OF THESE PROVISIONS WERE UNENFORCEABLE. CUSTOMER AND RISK ALIVE ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 11 IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN CUSTOMER, ITS AFFILIATES AND RISK ALIVE AND CUSTOMER AND RISK ALIVE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE AGREEMENT.
11.4 EXCEPTION. THE LAWS IN SOME JURISDICTIONS MAY NOT ALLOW SOME OF THE LIMITATIONS OF LIABILITY IN THIS SECTION. IF ANY OF THESE LAWS ARE FOUND TO APPLY TO THIS AGREEMENT, THIS SECTION 11 WILL APPLY TO THE MAXIMUM EXTENT PERMITTED BY LAW.
12.1 INDEMNIFICATION BY CUSTOMER. CUSTOMER AGREES TO DEFEND, INDEMNIFY AND HOLD RISK ALIVE, ITS AFFILIATES AND ITS SUBCONTRACTORS, AND EACH OF THEIR PAST AND PRESENT DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS, (THE “INDEMNITEES”) HARMLESS FROM AND AGAINST ALL CLAIMS OF THIRD PARTIES BROUGHT AGAINST, AND ALL LOSSES, OF WHATEVER NATURE INCURRED OR SUFFERED BY, ANY OF THE INDEMNITEES AS A RESULT OF, RELATED TO, OR IN ANY WAY CONNECTED TO CUSTOMER’S, ITS AFFILIATES AND THEIR RESPECTIVE PERSONNELS’ ACTS OR OMISSIONS, INCLUDING BUT NOT LIMITED TO, USE OF THE SITE OR SERVICES, RELIANCE ON THE SERVICES AND ANY OUTPUT THEREFROM, ANY CUSTOMER IMPLEMENTATION, OR RELATING TO ANY FAILURE BY CUSTOMER, ITS AFFILIATES OR THEIR RESPECTIVE PERSONNEL TO COMPLY WITH ANY APPLICABLE LAW OR ANY TERMS OF THE AGREEMENT.
12.2 Indemnification by Risk Alive.
(a) Intellectual Property Rights Indemnity. Risk Alive will defend and hold Customer and its Affiliates harmless against any Claims made or brought against Customer or any of its Affiliates (the “Indemnified Parties”) by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the Canadian or United States Intellectual Property Rights of such third party and will pay for any settlement and damages finally awarded against any of the Indemnified Parties.
(b) Exclusions. Risk Alive will have no obligation under this Section 12.2 for any infringement or misappropriation related or in any way connected to (i) use of the Services by Customer, its Affiliates or their respective personnel in combination with other products or services that are not provided or authorized by Risk Alive, if such infringement or misappropriation would not have arisen but for such combination; (ii) use of the Services by Customer, its Affiliates or their respective personnel in a manner or for a purpose not consistent with this Agreement or instructions provided by Risk Alive, if the infringement or misappropriation would not have occurred but for such use; (iii) any modification of the Services not made or authorized in writing by Risk Alive, where such infringement or misappropriation would not have occurred but for such modification (iv) any breach of Section 8 (Customer Responsibilities).
(c) Mitigation of Infringement Action. If a third party Claim as set out at Section 12.2(a) is brought against the Customer or its Affiliates, or in Risk Alive’s sole opinion, is likely to be brought, Risk Alive may at its sole option and expense : (i) procure the continuing right of Customer and its Affiliates to use the Services; (ii) replace or modify the Services in a functionally equivalent manner so that they become non-infringing; or (iii) if Risk Alive determines that neither (i) or (ii) are commercially feasible, Risk Alive may terminate Customer’s and its Affiliates’ rights with respect to the Services and refund to Customer all unused Fees pre-paid by Customer with respect to the Services.
12.3 Conditions of Indemnification: Each party’s indemnity obligations set out in Section 12 are conditional on the party seeking indemnification: (i) promptly notifying the indemnifying party of the Claim in writing, although failure to promptly notify will only relieve the indemnifying party of its indemnification obligation to the extent that it prejudices the indemnifying party’s defense of the Claim; (ii) granting the indemnifying party sole control of the defense and settlement of the Claim, although the indemnified party may participate in the defense with counsel of its choice at its own expense and the indemnifying party may not agree to any settlement that imposes any fault or obligation on the indemnified party or which includes an admission of wrongdoing by the indemnified party, without the indemnified party’s prior written consent (not to be unreasonably withheld or delayed); and (iii) providing reasonable cooperation and assistance in the defense and negotiation of the Claim.
13. TERM; Termination
13.1 Term. The term of this Agreement will commence on the Start Date of the Subscription and/or Session, and, with respect to a Subscription, will continue for the duration indicated on the Order and, with respect to a Session, will continue until the Session is fully performed (the “Term”), unless otherwise terminated in accordance with this Agreement. With respect to a Subscription, the Term will automatically renew for successive periods of the same duration as the original Term at Customer’s Subscription Fee (as defined and set out in the Order) or any increased rate provided that Risk Alive has given Customer notice of such increase no less than 60 days prior to the renewal date. The following do not constitute Subscription Fee increases: (i) additional fees for upgrades or additional services that Customer orders; and (ii) expiration of any discount or incentive programs. If a party notifies the other party that it does not want to renew a Subscription at least 30 days before the end of the then-current Term, this Agreement with respect to that Subscription will expire at the end of that Term.
13.2 Breach and Failure to Cure. Either party may terminate the Agreement with immediate effect upon written notice to the other party in the case of a breach by the other party of its material obligations under the Agreement, provided that the breach is not cured within thirty (30) days of written notification by the non-breaching party to the breaching party setting out the particulars of the breach. If the breach is not susceptible to cure, the non-breaching party may terminate the Agreement with immediate effect upon written notice to the other party.
13.3 Termination for Insolvency. Either party may terminate the Agreement with immediate effect upon written notice to the other party, if: (a) the other party is subject to proceedings in bankruptcy, or insolvency, whether voluntary or involuntary, (b) a receiver is appointed in respect of all or a substantial portion of the other party’s assets; or (c) the other party assigns its property to its creditors or generally becomes unable to pay its debts as they become due.
13.4 Effect of Termination. The expiration or termination of the Agreement will not affect or prejudice any rights or obligations which have accrued or arisen under the Agreement prior to the date of expiration or termination, including any rights or obligations which have accrued or arisen in respect of a breach or failure to perform, and such rights and obligations will survive the expiration or termination of the Agreement.
13.5 Access. Upon the expiry or termination of the Agreement, the rights and licenses in Sections 2.1 and 2.2 will automatically terminate.
14. Future Functionality
14.1 Customer acknowledges and agrees that its Subscription is contingent only on the delivery of the Services expressly set out in the Order and not on any other future functionality or features, services offerings, displays, wire frames, demonstrations, prototypes, mock-ups or on any oral or written representations made by Risk Alive whatsoever.
15. General Terms
15.1 Entire Agreement. This Agreement, together with the Order(s), constitutes the entire agreement between the parties with respect to the subject matter and supersedes any previous agreement, understanding or communications between the parties related thereto. Any terms and conditions appearing on a purchase order or other Customer-generated form will have no force and effect, even if Risk Alive accepts or does not otherwise reject the purchase order or other Customer-generated form. In the event of a conflict or inconsistency between an Order and this Agreement, this Agreement will prevail unless expressly stated otherwise.
15.2 Assignment. Customer may not assign any of its rights or obligations under this Agreement without the prior written consent of Risk Alive, which consent will not be unreasonably withheld, conditioned or delayed and any attempted assignment contrary to these requirements will be void. Risk Alive may assign this Agreement to any assignee or recipient of all or substantially all of its assets or equity, whether by assignment, sale of assets or stock by merger, reorganization (including consolidation, acquisition, amalgamation, or the like) or other transaction, so long as Risk Alive’s obligations under the Agreement are assumed by such assignee or recipient.
15.3 Subcontractors. Risk Alive may use its Affiliates or subcontractors to perform all or any part of the Services, provided Risk Alive remains responsible under the Agreement for Services performed by its Affiliates and subcontractors to the same extent as if Risk Alive performed the Services itself.
15.4 Amendments. Any modification or amendment to this Agreement must be made in writing and executed by an authorized representative of each party. Notwithstanding the foregoing, with respect to Subscriptions that auto-renew, if Risk Alive modifies this Agreement at least sixty (60) days before the end of the then-current Term, the modified version will take effect upon Customer’s next renewal.
15.5 Notices. All notices under this Agreement, to be effective, must be in writing and transmitted by email or functionally equivalent electronic means of transmission (i) to Risk Alive, at firstname.lastname@example.org; and (ii) to Customer, at the contact email set out in the Order, or to any other address as a party may at any time advise the other by notice given or made in accordance with this Section. Any notice delivered to the party to whom it is addressed will be deemed to have been given or made and received on the day on which it is transmitted; but if the notice is transmitted on a day which is not a business day or after 5:00 p.m. (local time of the recipient), the notice will be deemed to have been given or made and received on the next business day.
15.6 No joint venture or agency. Nothing in the Agreement will constitute or create a joint venture, partnership, or any other similar arrangement between Risk Alive and Customer or any of its Affiliates. For purposes of delivery of the Services, Customer and its Affiliates have engaged Risk Alive as an independent contractor. Neither Customer, its Affiliates nor Risk Alive will have the authority to make any statements, representations or commitments of any kind, or take any action, which will be binding on the other, without the prior consent of the party to do so, except as expressly provided for herein.
15.7 Exclusive Remedies. Except as otherwise expressly set out in the Agreement, the remedies set forth in the Agreement comprise the exclusive remedies available to Customer and its Affiliates at law or in equity.
15.8 Waiver and Severability. A waiver of any term of this Agreement is effective only if it is in writing and signed by both parties and is not a waiver of any other term. Each section of this Agreement is distinct and severable. If any section of this Agreement, in whole or in part, is or becomes illegal, invalid, void, voidable or unenforceable in any jurisdiction by any court of competent jurisdiction, the illegality, invalidity or unenforceability of that section, in whole or in part, will not affect: (i) the legality, validity or enforceability of the remaining sections of this Agreement, in whole or in part; (ii) the legality, validity or enforceability of the remaining part of that section, if applicable; or (iii) the legality, validity or enforceability of that section, in whole or in part, in any other jurisdiction.
15.9 Governing Law and Forum Selection. This Agreement is governed by, and will be enforced, construed, and interpreted in accordance with, the laws applicable in Alberta, Canada without regard to conflicts of law doctrine or the United Nations Convention on Contracts for the International Sale of Goods. Any action or proceeding between the parties will be resolved exclusively by the courts of the Province of Alberta in the city of Calgary. Each party hereby irrevocably accepts and submits to the exercise of personal jurisdiction over such party by such courts, agrees that venue will be proper in such courts and irrevocably waives and releases any and all defenses in such courts based on lack of personal jurisdiction, improper venue and forum non-conveniens. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and legal fees on a full indemnity basis.
15.10 Insurance. Risk Alive will, at its own expense, procure and continuously maintain throughout the Term, policies of insurance in the minimum amounts deemed prudent and sufficient by Risk Alive. A certificate of such insurance will be available upon request.
15.11 Survival. Sections 1, 2.3 – 2.5, 3.1(a) and (c), 3.2(a), 3.4, 4, 5, 6, 7, 8, 10, 11, 12, 13.4, and 15 of this Agreement and all other sections that by their terms contemplate obligations intended to survive, will survive in full force and effect notwithstanding any termination or expiry of the Agreement.
15.12 Enurement. The Agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns.
SCHEDULE “A” DEFINITIONS
- “Access Credentials” means anyuser name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
- “Affiliate” means with respect to either party, any person that directly or indirectly through one or more intermediaries, controls, is controlled by, or is under common control with that party. For the purposes of this definition, “control” will mean the direct or indirect beneficial ownership of 50% or more of voting securities or interest in an equity.
- “Aggregated Statistics” means data and information related to Customer’s, its Affiliates’, or their respective Authorized Users’ use of the Site and Services, including, without limitation, related to Customer Content, that is used by Risk Alive in an aggregated and anonymized manner, provided that any such data and information has been fully de-identified and does not identify Customer, its Affiliates, their respective Authorized Users, or any individual.
- “Authorized User” means any individual to whom Customer or its Affiliates grants access authorization to use the Services that is one of Customer’s or its Affiliate’s respective personnel.
- “Claims” means any and all manner of claims, demands, actions, suits or proceedings, including, without limitation, all rights with respect to any and all Losses.
- “Customer Content” means (i) the Deliverables; and (ii) any data, information and material that Customer, its Affiliates, or Authorized Users upload to the Software, provide to Risk Alive for the express purpose of being uploaded to the Software, or create through use of the Services, including but not limited to the Data Sets.
- “Data Sets” means all raw data and information associated with one or more processing units that Customer, its Affiliates, or Authorized Users upload to the Software or provide to Risk Alive for the express purpose of being uploaded to the Software.
- “Deliverables” means any and all products delivered to the Customer or its Affiliates as a result of a Facilitation, whether generated by Risk Alive or any subcontractor or Affiliate of Risk Alive, whether in full or in partial stage of completion.
- “Intellectual Property Rights” means any right or protection existing from time to time in a specific jurisdiction under any patent law, copyright law, moral rights law, trade secret law, database law, trademark law or other similar laws and includes legislation by governmental authorities and judicial decisions under common law or equity, and the right to apply to register such rights.
- “Losses” means any and all manner of losses, damages, fines, penalties, costs and expenses (including legal fees and expenses on a full indemnity basis), known or unknown, foreseeable or not foreseeable, liquidated or unliquidated, direct or indirect.
- “Malicious Code” means any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data.
- “Modify” or “Modifications” means updates, upgrades, patches, bug fixes, and other minor modifications, and new versions of the Software incorporating such updates, upgrades, patches, bug fixes, and other minor modifications, that are not included in the initial delivery of the Software.
- “Order” means a separate document completed for Customer and executed by the parties specifying the Services to be provisioned, the Fees for the Services, and incorporating this Agreement.
- “Risk Alive” means Risk Alive Analytics Inc., an Alberta corporation with an office at Suite 300, 926 5th Avenue SW, Calgary, Alberta T2P 0N7.
- “Risk Alive Content” means all content that is not Customer Content, including, without limitation, the Documentation.
- “Risk Alive IP” means the Site, the Services, Risk Alive Content, Aggregated Statistics, Analytics Learnings, Feedback, Risk Alive’s registered and unregistered trademarks and service marks, any written or electronic documents and materials produced by Risk Alive (excluding the Deliverables), and any developments and intellectual property rights in the foregoing.
- “Services” means those services that are set out in the Order, including, without limitation, any Facilitations, Training, In-person Services, and the Software, and also includes Risk Alive Content and Deliverables.
- “Site” means Risk Alive’s website at riskalive.com or any successor website, including any affiliated subdomains thereto.
- “Software” means Risk Alive’s Analytics software and any Modifications thereto.
- “Start Date” means the start date of a Subscription or a Session identified as the “Start Date” on the Order, or such other date that is mutually agreed to by the parties in writing.
- “Subscription” means the right to access Software pursuant to an Order.