1.1 Services to be Provided. Pursuant to its contractual rights with LiveSafe, Inc. (“LiveSafe”), Reseller is licensing to Customer a smartphone mobile safety application (“App”) and comprehensive cloud-based, password-protected services website (“Dashboard”) (the “App” and the “Dashboard” being hereinafter collectively referred to as the “Services”). Such licenses are not assignable. LiveSafe shall be deemed a Reseller licensor (“Licensor”) under the Agreement. Unless otherwise agreed between Reseller and LiveSafe, only LiveSafe and its authorized designee(s) may provide consulting or developmental services to Customer in connection with the App and the Dashboard.
1.2 Limitation of Rights. Customer recognizes that Customer’s rights in and to the Services are exclusively as set forth herein and do not comprise any rights of ownership in any of the Services. Customer agrees that LiveSafe owns all right, title and interest in and to the Services, the intellectual property rights relating thereto, and any modifications or improvements thereof. Customer shall not (i) use the Services other than for the Permitted Purpose; or (ii) attempt to disassemble, reverse engineer, decompile or create derivative works from (or authorize the disassembly, reverse engineering, decompilation or creation of derivative works from) any of the Services. Customer shall not sell, sublicense, assign, issue, copy or rent the Services.
1.3 Customer Data. Customer agrees that, except to the extent required by law, by court order or in connection with the provision of the Services to Customer hereunder, LiveSafe may use data collected, extracted or received through Customer’s use of the Services (“Customer Data”) in an anonymized and aggregated manner (without specifically identifying Customer, Customer’s users or Customer’s geographic locale) for the purposes of reporting App or Dashboard metrics, training and education about the Services, and improving LiveSafe’s services. As required by applicable law, LiveSafe will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality, and integrity of the Customer Data. If applicable, LiveSafe and Customer agree that they will negotiate in good faith and enter into any further data processing, data transfer or related agreement, including the standard contractual clauses for transfers of data outside the EU/EEA issued by the European Commission, as may be required to ensure that the collection, storage, transfer, use, retention and other processing of Customer Data is in compliance with applicable laws, rules and regulations.
1.4 Authorized Users. “Authorized Users” shall mean the employees, contractors and/or consultants under Customer’s control responsible for monitoring and administering the Dashboard who are authorized by Customer to access the Dashboard using a user identifier and password. With respect to the App, “Authorized Users” shall also include the individuals who download and/or use the App to communicate with Customer. Customer shall (i) not permit any person or entity, other than designated Authorized Users, to access the Dashboard, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Dashboard, and (iii) provide Reseller or LiveSafe prompt written notice of any such unauthorized access or use. Customer shall instruct Authorized Users of the Dashboard to comply with all applicable terms provided in these End User Terms.
1.5 Reseller Representations and Warranties. LiveSafe represents to Customer that it shall provide the Services (i) in a professional and workmanlike manner, (ii) in accordance with the specifications set forth at www.livesafemobile.com/description-of-services (as the same may be amended from time to time), and (iii) to the best of its knowledge, in compliance with all applicable laws, rules and regulations. LiveSafe further represents and warrants that (i) the Services are free of material defects, (ii) at the time of delivery, the Services shall be free of any and all time locks, viruses, trojans, worms, spyware, adware, other malware and malicious code, copy protect mechanisms, back doors, or any disclosed or undisclosed features designed to (x) disable the Services or render them incapable of operation, or (y) permit access to any Customer networks, systems, programs or Confidential Information; (iii) there is no pending or, to the best of its knowledge, threatened litigation against LiveSafe that could adversely affect its ability to perform its obligations hereunder or Customer’s use of the Services; and (iv) the Services do not and shall not infringe any patent, copyright, trade secret or other proprietary rights of any third party.
1.6 Customer Representations and Obligations. Customer represents that it is authorized to provide to LiveSafe Customer Data and data collected regarding Authorized Users for the purposes of LiveSafe providing Services to Customer. Customer further represents that, in connection with the deployment of the App to Authorized Users and Customer’s use of Customer Data obtained or accessed through the Services, Customer has provided appropriate notice to Customer Users and obtained any requisite consent, including for emails, SMS and other messages sent by or on behalf of Customer, disclosures to service providers and transfers of data to the United States. Customer also represents that it shall use the Services and any and all Customer Data obtained or accessed through the Services in compliance with all applicable laws, rules, and regulations. Customer will indemnify and hold Reseller, Licensor and each of their respective affiliates, directors, officers and representatives harmless from and against any losses resulting from (i) its breach of any representation or agreement contained in these End User Terms or (ii) its negligence or willful misconduct in using the Services.
1.7 Limited Warranty. EXCEPT AS SET FORTH IN THESE END USER TERMS, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND RESELLER DISCLAIMS ANY AND ALL WARRANTIES WITH RESPECT THERETO, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, RESELLER MAKES NO WARRANTY THAT THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE FASHION AT ALL TIMES.
1.8 Indemnification by LiveSafe. In the event of a claim against Customer resulting from the infringement or misappropriation of a third party United States copyright, patent, trademark or trade secret by reason of the use of the Services by Customer as permitted hereunder, LiveSafe shall, at its expense, defend such claim, and pay damages actually awarded or paid in connection therewith, including the reasonable fees and expenses of the attorneys engaged by LiveSafe for such defense and any costs or expenses incurred by Customer in connection with such claim, provided that (i) Customer shall promptly notify LiveSafe of such claim (provided that any failure by Customer to so notify LiveSafe shall not release LiveSafe of its indemnification obligations unless such failure actually prejudices LiveSafe’s defense of such claim), (ii) LiveSafe shall have the sole and exclusive authority to defend and/or settle any such claim (provided that LiveSafe shall not settle any claim that requires Customer to admit liability or pay any money unless such settlement is approved in writing by Customer), and (iii) Customer reasonably cooperates with LiveSafe in connection therewith at LiveSafe’s expense. If the use of the Services by Customer has become, or in LiveSafe’s opinion is likely to become, the subject of any claim of infringement, LiveSafe may at its option and expense (a) procure for Customer the right to continue using the Services as set forth hereunder; (b) replace or modify the Services to make them non-infringing so long as the Services have at least equivalent functionality; or (c) if options (a) or (b) are not reasonably practicable, terminate this Agreement and refund to Customer the fees paid for any unused portion of the contract term. LiveSafe shall have no liability or obligation under this Section 1.8 with respect to any claim to the extent such claim is caused by (x) compliance with designs, data, instructions or specifications provided by Customer, (y) modification of the Services by any party other than LiveSafe without LiveSafe’s express written consent, or (z) the combination, operation or use of the Services with Customer’s other applications, portions of applications, products, data or services where the Services would not have otherwise been infringing.
1.9 Indemnification by Customer. Customer shall indemnify, defend and hold harmless LiveSafe and its affiliates, directors, officers, employees and representatives from any and all losses, expenses (including reasonable attorneys’ fees and costs) and damages of any kind incurred as a result of (i) any breach of these End User Terms or breach of its agreement with Reseller related to the Services or (ii) any Authorized User misconduct or negligence in using the Services. all claims, demands or suits at law or in equity brought by a third party arising from Customer’s intentional or negligent acts or breach of its obligations under this Agreement.
1.10 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL LIVESAFE BE LIABLE TO CUSTOMER FOR ANY OF THE FOLLOWING TYPES OF LOSS OR DAMAGE ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THESE END USER TERMS, WHETHER OR NOT LIVESAFE WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE: (A) ANY LOSS OF BUSINESS, CONTRACTS, PROFITS, ANTICIPATED SAVINGS, GOODWILL OR REVENUE; (B) ANY LOSS OR CORRUPTION OF DATA OR (C) ANY INCIDENTAL, INDIRECT OR CONSEQUENTIAL LOSSES OR DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES). EXCEPT FOR THE INDEMNIFICATION OBLIGATIONS SPECIFICALLY SET FORTH IN SECTION 1.8 HEREIN, IN NO EVENT SHALL THE CUMULATIVE LIABILITY OF LIVESAFE FOR ALL CLAIMS ARISING FROM OR RELATING TO THESE END USER TERMS, REGARDLESS OF THE NATURE OF THE CLAIM, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER TO RESELLER DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT, ACT OR OMISSION GIVING RISE TO SUCH LIABILITY.
1.11 Miscellaneous. LiveSafe is an intended third party beneficiary of the agreement between Reseller and Customer regarding use and access to the Services and LiveSafe has the right to enforce the terms of such agreement where Reseller fails to adequately address such defaults within a reasonable time of becoming aware of same. Notwithstanding the foregoing, nothing contained herein shall prevent LiveSafe from seeking any remedy from any Authorized User to which it is otherwise entitled to seek in connection with damages actually incurred as a result of any such default. Customer agrees that, to the extent not prohibited by applicable law, neither Reseller nor LiveSafe shall be liable for any death, personal injury or damage to property.