Effective: January 23, 2020
These Terms of Service (the “Customer Terms”) describe your rights and responsibilities when using our online Risk Intelligence Solution (the “Services”). Please read them carefully. These Customer Terms govern your access and use of our Services. These Customer Terms (or, if applicable, your written agreement with us) and any Order Form(s) together form a binding “Contract” between Customer and us.
1. USE RIGHTS; RESTRICTIONS
1.1 Services. LiveSafe provides a smartphone mobile safety application (“App”) and comprehensive cloud-based, password-protected services website (“Dashboard”), each as described in Section B (collectively, the “Services”). LiveSafe shall provide the Services to Customer during a Subscription Period.
1.2 Customer License. During a Subscription Period LiveSafe grants Customer, a non-transferable, royalty-free, non-exclusive license to set up and use the Services for as described in this Agreement.
1.3 Customer’s Rights; LiveSafe Ownership. Customer agrees that this Agreement exclusively describes its rights to access and use the Services which do not include ownership rights to any of the Services. LiveSafe owns all right, title and interest in and to the Services and all related intellectual property rights , and any modifications or improvements. . Customer shall not (i) use the Services other than as described in this Agreement ; or (ii) attempt (or permit anyone else) to disassemble, reverse engineer, decompile or create derivative works from any of the Services or (iii) sell, sublicense, issue, copy or rent the Services.
1.4 Customer Data. Customer agrees that LiveSafe may only 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 location(s)) for the sole purposes of reporting App or Dashboard metrics, training and education about the Services, and improving the Services (except as may be required by law, court order, or as needed to provide the Services to Customer). Within ten (10) business days following Customer’s written request, and not more than four (4) times per year, LiveSafe shall provide Customer, in CSV file format, a full or incremental (as mutually agreed) backup copy of the Customer Data in its possession. If applicable, LiveSafe 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 European Union/European Economic Area issued by the European Commission, as may be required to comply with applicable laws, rules and regulations regarding the collection, storage, transfer, use, retention and other processing of Customer Data.
1.5 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 all of Customer’s employees. 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 LiveSafe prompt written notice of any unauthorized access or use. Customer shall instruct Authorized Users of the Dashboard to comply with all applicable terms of this Agreement.
1.6 Delivery. LiveSafe shall provide Customer with a detailed implementation plan and the timeline for Customer’s review and approval. Upon Customer’s approval, LiveSafe shall commence implementation of the Services according to the approved plan and timeline. Setup, configuration, and training for launch must be completed within six months from the “Effective Date” of the agreement. Set-up fees are non-refundable.
2. PAYMENTS, TAXES
2.1 Payment Terms. Customer shall pay the Annual Subscription Fees to LiveSafe according to the payment schedule described in the Order Form.
2.2 Late Payments. LiveSafe may charge interest at the rate of one and one-half percent (1½%) per month, eighteen percent (18%) per annum, or at the highest rate allowed by law, whichever is less, from the date due until paid, whether before or after judgment. LiveSafe may suspend the Services or other performance if the Customer fails to make full payment of any undisputed amount owed under this Agreement within ten (10) days after written notice from LiveSafe.
2.3 Taxes. The Annual Subscription Fee does not include any taxes and the Customer is responsible for any sales, use, GST, value-added, withholding, or similar taxes or levies, whether domestic or foreign, for the use of the Services (other than taxes payable by LiveSafe based on its income.
3. CONFIDENTIALITY AND DATA SECURITY
3.1.1 “Confidential Information” means all information or data, whether or not in tangible form, disclosed or otherwise made available in connection with this Agreement by either Party (the “Discloser”) to the other Party (the “Recipient”), that the Discloser has either marked as confidential or proprietary, has identified in writing as confidential or proprietary within thirty (30) days of disclosure to the Recipient, or that would reasonably be expected to be confidential under the circumstances. LiveSafe’s Confidential Information shall include, without limitation all proprietary information relating to the Services, including LiveSafe’s approach to source-code and design development and the terms of this Agreement, including pricing information. Customer’s Confidential Information shall include, but is not limited to, Customer Data and all data collected on Customer’s Authorized Users (including, without limitation, any GPS data), whether submitted by Customer, the Authorized Users or obtained from an Authorized User’s device via the App. However, Confidential Information does not include information that (i) is already known to Recipient at the time of disclosure, (ii) is or becomes publicly known through no wrongful act or failure of the Recipient, or (iii) is independently developed by Recipient without using Discloser’s Confidential Information, or (4) is received from a third party without breaching any confidentiality obligation.
3.1.2. Each Party shall use reasonable measures to protect the confidentiality of and avoid disclosure and unauthorized use or copying of the other Party’s Confidential Information. Except where specifically allowed by this Agreement, a Recipient may only disclose the Discloser’s Confidential Information to (1) Recipient’s employees, agents, and legal or financial advisors with a need to know in the course of their duties and (2) as required by law or court order, provided the Recipient notifies the Discloser in advance and cooperates in any effort by the Discloser to seek a protective order and/or obtain confidential treatment. LiveSafe may disclose the terms of this Agreement to existing and potential investors, lenders and acquirers and their legal or financial advisors. Any disclosure by Recipient to a third party must be protected by confidentiality obligations equivalent to these.
3.1.3 An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that is made in confidence to a Federal, State, or local government official or to an attorney solely for the purpose of reporting or investigating a suspected violation of law. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for disclosing a trade secret in a complaint or other document filed in a lawsuit or other proceeding if the filing is made under seal. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose a trade secret to the individual’s attorney and may use the trade secret information in the court proceeding, if the individual files any document containing the trade secret under seal; and does not disclose the trade secret, except as required by a court order.
3.2 Data Security.
3.2.1 Compliance with Privacy Laws. LiveSafe is responsible for complying with all Privacy and Data Protection Requirements (described below) with respect to providing the Services to Customer and LiveSafe will only collect Personal Information of Customers in accordance with such applicable Privacy and Data Protection Requirements.
3.2.2 Technical Safeguards. LiveSafe shall maintain appropriate organizational and technical measures for protection of the security (including protection against unauthorized or unlawful processing of data, and against unlawful or accidental destruction, alteration or damage or loss, unauthorized disclosure of, or access to, Personal Information), confidentiality, and integrity of Personal Information. LiveSafe regularly monitors compliance with these measures. LiveSafe will not materially decrease the overall security of the Services during the Term of this Agreement.
3.2.3 Independent Certifications. LiveSafe will provide Customer annually (once in any 12 months) at Customer’s request copies of all independent, third-party certifications of LiveSafe’s applicable data security controls (e.g.; SSAE16, ISO, SOC 1, SOC 2, etc.) that address all or a portion of the subject matter of the data security requirements set forth herein (e.g., information security, internal controls, privacy).
3.2.4 “Personal Information” (also known as “Personally Identifiably Information” or “PII”) means any information LiveSafe processes for Customer that (a) identifies or relates to an individual who can be identified directly or indirectly from that data alone or in combination with other information in LiveSafe’s possession or control, or (b) the relevant Privacy and Data Protection Requirements otherwise define as protected personal information.
3.2.5 “Privacy and Data Protection Requirements” means all applicable federal, state, and foreign laws and regulations relating to the processing, protection, or privacy of the Personal Information, including where applicable, the guidance and codes of practice issued by regulatory bodies in any relevant jurisdiction.
4. WARRANTIES AND EXCLUSIONS
4.1 LiveSafe Warranties. LiveSafe warrants that it shall provide the Services (i) in a professional and workmanlike manner, (ii) in accordance with the specifications and functionality described in the specifications available at here (which LiveSafe may revise from time to time to keep it current), and (iii) to the best of its knowledge, in compliance with all applicable laws, rules and regulations. LiveSafe also warrants that at the time of delivery, the Services are free of material defects and 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 disable the Services, render them incapable of operation, other than for compliance with the Services license terms or Subscription Period or permit access to any Customer networks, systems, programs or Confidential Information. Subject to the notice and cure period set forth in Section 8.2 below, if Customer terminates this Agreement as a result of LiveSafe’s breach of this Section 4.1, Customer shall be entitled to a refund from LiveSafe of any prepaid fees for any unused portion of the Subscription Period.
4.2 Customer Warranties. Customer warrants that it has the necessary authority to provide the necessary Customer Data and data regarding Customer’s Authorized Users so that LiveSafe can provide its Services to Customer. Customer also warrants that, in connection with the deployment of the App to Customer’s employees and Customer’s use of Customer Data obtained or accessed through the Services, Customer has complied with applicable Privacy and Data Protection Requirements including appropriate notice to Customer’s employees and receiving any necessary consent, including for 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.
4.3 Reciprocal Warranties. Each Party warrants to the other Party that it has the right to enter into and to perform the obligations of this Agreement and that the person executing this Agreement on behalf of that Party is authorized to do so.
4.4 Exclusions. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY OF ANY KIND AND LIVESAFE DISCLAIMS ALL OTHER EXPRESS OR IMPLIED WARRANTIES , INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, LIVESAFE MAKES NO WARRANTY THAT THE SERVICES WILL BE PROVIDED IN AN UNINTERRUPTED OR ERROR-FREE FASHION AT ALL TIMES.
5.1 LiveSafe shall be liable to Customer, its officers and employees for all third party claims, demands or suits at law or in equity (‘Claims”) arising from or related to LiveSafe’s intentional or negligent acts or breaches of its obligations under this Agreement.
5.2 Customer shall be liable to LiveSafe, its officers and employees for any third party Claims arising from or related to Customer’s intentional or negligent acts or breaches of its obligations under this Agreement.
5.3 LiveSafe will defend Customer in any action based on any Claims that the Services, when used in accordance with this Agreement, infringes a U.S. copyright, patent or trademark or misappropriates a trade secret (as defined under applicable law) of any third party, and LiveSafe shall pay all reasonable costs, expenses and damages finally awarded against Customer, arising from those Claims; provided, however, that (i) Customer gives LiveSafe prompt written notice of any Claims, (ii) Customer fully cooperates with LiveSafe in the defense and/or settlement of the Claims, (iii) Customer agrees that LiveSafe has full control of the defense of any Claims and any settlement or compromise (although LiveSafe may not settle any claim that requires Customer to any liability or make any payment by Customer without Customer’s prior written permission), and (iv) Customer promptly complies with LiveSafe’s direction to cease using any Services that LiveSafe reasonably believes may be considered to infringe on a third party’s intellectual property rights.
5.4 Where LiveSafe believes that Customer’s use of the Services has become is likely to become, the subject of any Claims of infringement, LiveSafe may, at its option and expense, (i) obtain for Customer the right to continue using the Services as set forth in this Agreement; (ii) replace or modify the Services to avoid the infringement Claims while maintaining at least equivalent usefulness and performance; or (iii) if options (i) or (ii) are not reasonably practicable, terminate the problem Services and refund to Customer any prepaid Subscription Fees for any unused portion of the Subscription Period. LiveSafe shall have no liability or obligation under this Section 5.5 to the extent that any infringement Claims are caused by (a) modification of the Services by LiveSafe to comply with Customer-provided designs, data, instructions or specifications, (b) modification of the Services by Customer or any other party LiveSafe’s prior written consent, or (c) Customer’s use of the Services in combination with any other equipment or software where that combination causes the infringement.
5.5 Where each party is partly responsible for the liability in a Claim, any liability, loss, cost, or expense shall be proportionally shared between the Parties based on their relative degree of responsibility.
5.6 Anywhere in this Agreement where a Party’s has an obligation to or agrees to defend the other Party, the other Party may retain its own counsel at its own expense to participate in the defense, but that expense shall not be included in the defending Party’s liability obligation.
6. LIMITATION OF LIABILITY
6.1 TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR: (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), ARISING IN ANY WAY OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES, WHETHER OR NOT THE PARTY WAS ADVISED IN ADVANCE OF THE POSSIBILITY OF THAT LOSS OR DAMAGE. EXCEPT FOR LIVESAFE’S INFRINGEMENT RESPONSIBILITIES SPECIFICALLY SET FORTH IN SECTION 5.3 OF THIS AGREEMENT, LIVESAFE’S CUMULATIVE LIABILITY FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE NATURE OF THE CLAIMS, SHALL NOT EXCEED THE AMOUNT OF FEES PAID OR PAYABLE TO LIVESAFE BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICES GIVING RISE TO THE LIABILITY DURING THE TWELVE (12)-MONTH PERIOD IMMEDIATELY PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE. NO PERSON WHO IS NOT A PARTY TO THIS AGREEMENT SHALL HAVE ANY RIGHT TO ENFORCE ANY TERM OF THIS AGREEMENT.
6.2 NOTHING IN THIS LIMITATION OF LIABILITY SECTION OR OTHERWISE IN THE AGREEMENT SHALL EXCLUDE OR IN ANY WAY LIMIT EITHER PARTY’S LIABILITY TO THE OTHER FOR (1) FRAUD, (2) DEATH OR PERSONAL INJURY CAUSED BY THAT PARTY’S NEGLIGENCE, OR (3) ANY LIABILITY TO THE EXTENT THAT IT MAY NOT BE EXCLUDED OR LIMITED AS A MATTER OF LAW.
7.1 During the Term, LiveSafe shall maintain in force, at its sole expense, the following insurance coverage:
7.2 Liability Insurance for bodily injury and property damage with a limit of not less than $4,000,000 each occurrence and in the aggregate inclusive of defense costs. Said coverage shall include contractual liability coverage for any indemnity provided by LiveSafe to Customer IN this Agreement.
7.3 Professional Liability Insurance (including coverage for Errors & Omissions, cyber liability and privacy) with a combined single limit of not less than $5,000,000 each claim, incident or occurrence and in the aggregate inclusive of defense costs (other than privacy breach notification costs which must have an aggregate limit of not less than $1,000,000). This coverage shall include contractual liability coverage for any indemnity provided by LiveSafe to Customer in this Agreement.
7.4 There shall be no cancellation, material change, reduction of limits or intent not to renew the insurance coverage(s) provided pursuant to this Section 7 without thirty (30) days written notice from LiveSafe or its insurer(s) to Customer.
8. TERM, TERMINATION
8.1 Term. Unless earlier terminated as described below, this Agreement shall commence on the Effective Date of the Order Form for the specified Services and continue for the Initial Subscription Period and any Renewal Subscription Periods specified on that Order Form. After the last Subscription Period specified on the Order Form expires, Customer’s Subscriptions to the Services shall renew automatically for subsequent 12-month Subscription Periods (unless the parties agree in writing on a longer period). Either Party may elect not to automatically renew the Services by providing written notice to the other Party sixty (60) days prior to the start of the applicable renewal Term.
8.2 Termination for Cause. Either Party may terminate this Agreement, without incurring liability, obligation or penalty of any kind, upon written notice, if the other Party commits any material breach of this Agreement and fails to cure that breach within thirty (30) days after that written notice is delivered (although the parties may agree to extend the cure period by up to sixty (60) additional days, if the breaching Party is diligently attempting to cure the breach). In addition, LiveSafe shall have the right to terminate this Agreement upon thirty (30) days prior written notice to Customer if Customer’s employee count increases materially during a Subscription Period due to merger and/or acquisition, and, after good faith efforts, LiveSafe and Customer cannot agree upon revised pricing for the Services.
8.3 Obligations on Termination. Upon termination or expiration of this Agreement, all rights granted to Customer and all obligations of LiveSafe to provide the Services shall immediately terminate and each Party shall promptly return or destroy any Confidential Information of the other Party in its possession or control. Any destruction of a Discloser’s Confidential Information shall be, upon request by the Discloser, certified in writing by an officer of the Recipient. This obligation to return or destroy Confidential Information or copies does not extend to automatically generated computer back-up or archival copies generated in the ordinary course of Recipient’s information systems procedures, provided that Recipient shall make no further use of Confidential Information contained in those copies. Upon any termination or expiration of this Agreement (whether for cause, without cause, or for any other reason), at Customer’s request, LiveSafe will provide a full and complete copy of the Customer Data then in LiveSafe’s possession in CSV (comma separated values) file format, within ten (10) business days. Termination of this Agreement for any reason (other than LiveSafe’s breach ) shall not relieve Customer from paying all fees accruing prior to termination and shall not result in any refund to Customer of any fees previously paid. Provisions anywhere in this Agreement regarding payment, termination, ownership, intellectual property rights, warranties, liability, limitations of liability, governing law, dispute resolution, confidentiality, severability, and waivers, will survive the expiration or termination of this Agreement.
9.1 Excusable Delays. In no event shall either party be liable to the other for any delay or failure to perform hereunder due to causes beyond the reasonable control of that party, including acts of a government and severe weather conditions. Failure to make payment under this Agreement shall not be considered an excusable delay.
9.2 No Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party (which shall not be unreasonably withheld, conditioned or delayed), except that either Party may assign this Agreement, without the prior written consent of the other Party, to a corporation or other business entity succeeding to all or substantially all of the assets and business of the assigning Party by merger or purchase. However, Customer’s assignment to a successor shall be permitted only if (1) Customer has no payment’s due to LiveSafe at the time, (2) Customer’s assignee is not a direct competitor of LiveSafe, and (3) Customer’s will be bound by LiveSafe’s then-current standard terms and conditions applicable to the Services transferred. Any attempt by either Party to assign or transfer any of the rights, duties or obligations of this Agreement in violation of the foregoing shall be null and void.
9.3 Independent Contractor Relationship. Each Party at all times is acting as an independent contractor under this Agreement and not in an agency, employment, franchise, joint venture or partnership relationship with the other. Neither Party has the authority to obligate or bind the other in any manner, and nothing in this Agreement shall create or is intended to create any rights of any kind to any third party.
9.4 Amendment. This Agreement may not be amended or modified except in writing and signed by an authorized representative of each Party.
9.5 Waiver. No provision, part, or remedy of this Agreement may be waived except in writing signed by an authorized representative of the waiving Party. Failure or delay by either Party to enforce any provision of this Agreement will not be considered a waiver of future enforcement of that or any other provision.
9.6 Severability. If any provision of this Agreement is unenforceable, that provision will be reformed only to the extent necessary to make it enforceable to reflect the intent of the Parties as of the Effective Date, and the remainder of the Agreement will remain valid and enforceable.
9.7 Governing Law, Jurisdiction. All disputes, claims or controversies arising out of this Agreement, or the negotiation, validity or performance of this Agreement, or the transactions contemplated hereby shall be governed by, and construed and enforced in accordance with, the laws of the State of Delaware without regard to its conflicts of law rules, and by applicable federal laws, including without limitation, the Defend Trade Secrets Act. Each Party consents to the sole and exclusive jurisdiction of the state and federal courts of Delaware as the venue any litigation among the Parties arising out of or relating to this Agreement. However, either party may, seek injunctive or other equitable relief to protect its Confidential Information, license rights and intellectual property rights, from any court of competent jurisdiction, regardless of the Delaware court requirement. Each Party waives any trial by jury. LiveSafe reserves the right to pursue collections activity or legal action in a court of competent jurisdiction to compel payment due under this agreement and shall be entitled to recover its costs and reasonable attorneys’ fees.
9.8 Notices. All notices required by or related to this Agreement will be in writing and will be considered to be given when: (i) delivered personally; (ii) sent by other electronic means with confirmation of receipt; (iii) three (3) days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) one (1) day after deposit with a commercial overnight carrier, with written verification of receipt. All communications will be sent to the addresses set forth on the Order Form in or to other addresses designated in writing by a Party.
9.9 Entire Agreement. This agreement is the entire agreement between LiveSafe and Customer, supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding the Services and related terms. This Agreement prevails over any additional or conflicting terms or conditions in any Customer purchase orders, online procurement terms, or other non-negotiated forms relating to the services or this agreement hereto even if dated later than the effective date of this agreement.
9.10 Publicity. LiveSafe shall be entitled to identify Customer as a customer of LiveSafe and LiveSafe may (i) issue a press release announcing this Agreement (without confidential details such as pricing, Authorized Users, etc.), and (ii) use Customer’s name and/or logo for publicity and advertising purposes. Where Customer’s logo is to be used, LiveSafe will provide Customer with advance written notice and may use the logo if Customer does not object within five (5) business days.
9.11 Counterparts. This Agreement may be executed in one or more counterparts each of which shall be deemed an original, but all of which together shall constitute the same Agreement. instrument. Scanned or facsimile transmissions of signatures or electronic signatures or acceptance shall be considered to create a binding Agreement in the same way as original signatures.