These Terms and Conditions are effective as of October 11th, 2022
These Web Store Terms & Conditions (the “Agreement”) set forth a legally binding agreement between you and Risk Alive Analytics Inc. (“Risk Alive”).
By downloading any of Risk Alive’s Products (as defined below), you acknowledge that you have read and agree to be bound by this Agreement and to comply with all applicable laws with regard to your use of the Products.
You represent that you have the authority to bind yourself or any party you represent to this Agreement.
1.1 “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.
1.2 “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.
1.3 “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.
1.4 “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.
1.5 “Products” means the products offered for download from Risk Alive’s web store located at https://www.riskalive.com/store/, including but not limited to Data Enriched PHAs (DEPs), Data Packs, and PHA Procedure Templates.
1.6 “Risk Alive IP” means the Products, any and all content therein, Risk Alive’s registered and unregistered trademarks and service marks, and any developments and intellectual property rights in any of the foregoing.
2. Access and Use
2.1 Grant of Rights. Subject to the terms of this Agreement, Risk Alive grants you a non-exclusive, worldwide, fee-bearing, non-transferable, non-sub-licensable and limited right and license to access and use the Products you purchase solely for non-commercial, internal business purposes.
2.2 Authorized Users. You may allow your Affiliates and your and their respective employees and contractors (each such Affiliate, employee and contractor is an “Authorized User”) to use the Products, provided that: (i) you cause each Authorized User to use the Products in accordance with this Agreement; and (ii) you remain liable for each Authorized User’s use of the Products and compliance with this Agreement as if the Authorized User was you.
2.3 Data Enriched PHAs. Notwithstanding Section 2.1, you acknowledge and agree that the license granted for a Data Enriched PHA is for one-time use. A Data Enriched PHA may not be used for more than one risk assessment.
2.4 Restrictions on Use. Except as expressly permitted in this Agreement, you shall not:
(a) transfer, license, display, distribute, resell, commercialize or make available any Product in any form to any third party;
(b) access or use any Product for any purpose that is competitive with Risk Alive or its Affiliates, or any products of Risk Alive or its Affiliates, or for purposes of developing or promoting any competing product or service;
(c) publish or publicly disclose any Product, including by placing any of the Products onto a server so that it is accessible to any third party or via a public network such as the Internet;
(d) remove, obscure or modify any copyright or other notices included in the Products; or
(e) use any Product for purposes of product evaluation, benchmarking or other comparative analysis without Risk Alive’s prior written consent.
3.1 You are solely responsible for consideration, assessment, and implementation of, and reliance upon, the Products (“Implementation”). To the fullest extent permitted by law, you agree that you and your 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 Implementation.
4. Risk Alive Intellectual Property
4.1 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 you, your Affiliates or any other third party.
5. Disclaimer of Warranties
5.1 Except as expressly set out in this Agreement, the Products 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 Products are suitable for or will meet your requirements;
(b) the Products are free of defects, harmful code, viruses or malware;
(c) the Products will be free from interruption;
(d) the Products will be error-free; or
(e) all defects in the Products will be corrected.
5.2 The disclaimers in this section will apply to the maximum extent permitted by applicable law and notwithstanding anything to the contrary in this agreement. You 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.
6. Limitation of Liability
6.1 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 products) even if Risk Alive has been advised of the likelihood of such Losses or such Losses were otherwise foreseeable.
6.2 LIMITATION OF LIABLITY. Notwithstanding anything to the contrary in this Agreement, in no event will Risk Alive’s aggregate liability in relation to this Agreement, whether by statute, contract, tort (including negligence), or under any other theory of liability, exceed the total amount paid by you for the Products subject to the Claim.
6.3 ASSUMPTION OF RISK. You further acknowledge that (a) you and your Affiliates’ access to and use of the Products under the Agreement is made possible only by the disclaimer of warranties and limitation of liability specified herein and (b) substantial consideration would be payable by you if any of these provisions were unenforceable. You and Risk Alive acknowledge and agree that the essential purpose of this Section 6 is to allocate the risks under the Agreement between you, your Affiliates and Risk Alive and you and Risk Alive have relied on these limitations in determining whether to enter into the Agreement.
6.4 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 6 will apply to the maximum extent permitted by law.
7.1 INDEMNIFICATION. You agree 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 arising out of or in any way related to your, your Affiliates and your and their respective personnels’ acts or omissions, including but not limited to, use of the Products, reliance on the Products, any Implementation, or relating to any failure by you, your Affiliates or your or their respective personnel to comply with any applicable law or any terms of the Agreement.
8. General Terms
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.