OpCon Technologies, Inc. provides access to its online software as a service (SaaS), for rapid knowledge transfer ("SafetySpectrum Service"). The company identified on the Order From (as defined below) during registration ("Customer") desires to subscribe to the SafetySpectrum Service for a paid subscription period indicated on a signed Subscription Agreement ("Subscription Term"). OpCon Technologies, Inc. desires to provide the SafetySpectrum Service to Customer on the terms and conditions set forth in these Terms of Service ("TOS") by permitting Customer to access to the proprietary SafetySpectrum technology (including hardware and software) used by OpCon Technologies to deliver the SafetySpectrum Service ("SafetySpectrum System"), provided that Customer accepts all the terms in this TOS. You hereby agree that you enter into this TOS on behalf of Customer and that you have the authority to bind Customer to the terms and conditions of this TOS. The Customer's use of the SafetySpectrum Service is subject to these Terms of Service ("TOS"). OpCon Technologies reserves the right to update and change this TOS from time to time without notice or acceptance by the Customer. This latest version of this TOS is maintained and always available at www.opcontech.com/aboutus_tos.html. This TOS will also be applicable to the use of the Services on a trial basis. By using the SafetySpectrum Service, the customer signifies their irrevocable acceptance of this TOS.
1. SAFETYSPECTRUM SERVICE.
i. Right to Access the SafetySpectrum Service. Subject to the terms of this TOS,OpCon Technologies, Inc. hereby grants to Customer, during the Subscription Period, as applicable, a non-sublicensable, non-transferable, non-exclusive right to access and use the SafetySpectrum Service in accordance with the contract and order documents signed by the parties representing the initial subscription to the SafetySpectrum Service (and any subsequent modifications to the subscription agreed to between the parties in writing) that are made a part of this TOS and the designated final user manuals, handbooks, online materials, specifications or forms furnished by SafetySpectrum that describe the features, functionality or operation of the SafetySpectrum System ("Documentation"). A separate Subscription Agreement specifies certain terms related to Customer's access to the SafetySpectrum Service, including the amount of fees to be paid by Customer ("Fees"), the number of employees, representatives, consultants, contractors or agents of Customer who are authorized to use the SafetySpectrum Service on behalf of Customer ("Users"), the Subscription Term, as applicable. Customer may use the SafetySpectrum Service solely for Customer's internal business purposes. Customer is solely responsible for providing, at its own expense, all network access to the SafetySpectrum System, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the SafetySpectrum Service.
ii. Users. Customer may access and use the SafetySpectrum Services and SafetySpectrum System by up to the maximum number of Users specified on the Subscription Agreement and access to the SafetySpectrum Service cannot be shared with anyone other than a User. If Customer wishes to add additional Users during the Subscription Period, Customer must submit a new executed Subscription Agreement. Upon mutual execution of the terms of a new Subscription Agreement, SafetySpectrum shall make the SafetySpectrum Service available to the additional Users on the terms and conditions set forth in this TOS and the executed Subscription Agreement. With respect to additional Users: (i) the term will be coterminous with the preexisting Subscription Period; and (ii) Customer will be responsible for any additional Fees (as defined below) for the additional Users in full for the month in which the new Subscription Agreement is approved by OpCon Technologies.
iii. Service Levels. Subject to the terms of this TOS, OpCon Technologies shall use commercially reasonable efforts to (a) maintain the security of the SafetySpectrum Service; (b) provide the support services described below; (c) perform regular backups for the data and information contained in any database, template or other similar document submitted by Customer through the SafetySpectrum Service or provided by Customer to SafetySpectrum as part of the SafetySpectrum Service ("Customer Data") and (d) make the SafetySpectrum Service available 24 hours a day, 7 days a week, except during planned down time. SafetySpectrum gives eight (8) hours or more notice that the SafetySpectrum Service will be unavailable. Customer is solely responsible for providing, at its own expense, all network access to the SafetySpectrum Service, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the SafetySpectrum Service.
iv. Service Level Agreement. OpCon Techologies offers a service level agreement (SLA) with respect to the SafetySpectrum Service. The SLA may be updated by us from time to time. The SLA that we currently offer with respect to the SafetySpectrum Service is located at www.opcontech.com/aboutus_sla.html
v. Support. Support services provided by SafetySpectrum in connection with the SafetySpectrum Service under this TOS given during normal business hours of 09:00 AM to 05:00 PM Monday - Friday. OpCon Technologies reserves the right to modify the support services in its reasonable discretion from time to time, which modifications shall become effective upon posting on its website.
2. CUSTOMER'S USE OF THE SAFETYSPECTRUM SERVICE.
i. Access and Security Guidelines. OpCon Technologies will provide Customer's Authorizing Person the number of unique identification names and passwords assigned the User accounts (each, a "User ID") to enable the corresponding number of Users identified in the Subscription Agreement to access and use the SafetySpectrum Service. Customer shall be responsible for ensuring the security and confidentiality of all User IDs provided to it. User IDs may be shared within Customer's organization, provided that User IDs may not be provided to any individual who is not a User (other than the Subscription Administrator) and each User account and User ID may be assigned to and used by only one individual User. Customer will use commercially reasonable efforts to prevent unauthorized access to, or use of, the SafetySpectrum Service, and will notify SafetySpectrum promptly of any such unauthorized use of which Customer becomes aware. Customer will not use its access to the SafetySpectrum Service to: (a) harvest, collect, gather or assemble information or data regarding other users without their consent; (b) access or copy any data or information of other SafetySpectrum customers without their consent; (c) knowingly interfere with or disrupt the integrity or performance of the SafetySpectrum Service, the SafetySpectrum System or the data contained therein; or (d) harass or interfere with another SafetySpectrum customer's use and enjoyment of the SafetySpectrum Service. Customer will, at all times, comply with all applicable local, state, federal, and foreign laws in using the SafetySpectrum Service.
ii. Customer Data. Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity or privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. OpCon Technologies may take remedial action if Customer Data violates this Section 3(ii), however, OpCon Technologies is under no obligation to review Customer Data for accuracy or potential liability.
iii. Use Restrictions. Customer is responsible for all activities that occur under Customer's User accounts. Customer will not, and will not attempt to: (a) reverse engineer, disassemble or decompile any component of the SafetySpectrum System; (b) interfere in any manner with the operation of the SafetySpectrum Service or the SafetySpectrum System; (c) allow a third party to access the SafetySpectrum Service or transfer to a third party any of Customer's rights under this TOS, except as otherwise provided in this TOS, or otherwise use the SafetySpectrum Service for the benefit of a third party or to operate a service bureau; (d) copy, modify or make derivative works based on any part of the SafetySpectrum System; or (e) otherwise use the SafetySpectrum Service in any manner that exceeds the scope of use permitted under Section 2.1 and Section 2(ii) above.
3. CONTENT SUBMITTED.
i. OpCon Technologies hereby disclaims ownership of the Content that the customer transmits to OpCon Technologies via the Services. By submitting Content to OpCon Technologies in order to utilize the Services, customer grants OpCon Technologies a world-wide, royalty-free, and non-exclusive license to reproduce, modify, adapt and publish the Content solely for the purpose of transmitting the Content for customer on the customer's behalf and tracking said Content as described above. This license exists only for as long as the customer continues to maintain an account with OpCon Technologies and shall be terminated at the time the customer account is closed.
ii. Customer acknowledges that OpCon Technologies does not pre-screen Content, but that OpCon Technologies shall have the right (but not the obligation) in its sole discretion to refuse or remove any Content that is available via the Services. Without limiting the foregoing, OpCon Technologies reserves the right to refuse any Content that violates this TOS or finds otherwise objectionable. Customer agrees that they must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, orusefulness of such Content.
4. CONTENT AND CONDUCT RULES AND OBLIGATIONS.
i. Customer understands and agrees that all information, data, text, software, music, sound, photographs, graphics, video, messages, goods, products, services or other materials ("Content") are the sole responsibility of the person from which the content originated. This means that the customer, and not OpCon Technologies, are entirely responsible for all Content that they upload, post, transmit, incorporate intotraining materials, or otherwise make available via the Services. OpCon Technologies does not control the Content posted via the Services, and, as such, does not guarantee the accuracy, integrity or quality of such Content.
ii. Customer understands and agrees that under no circumstances will OpCon Technologies be liable in any way forContent, including, but not limited to, for any errors or omissions in any Content, or for any loss ordamage of any kind incurred as a result of the use or distribution of any Content posted, transmitted orotherwise made available via the Services. Customer acknowledges that OpCon Technologies may not pre-screenContent, but that OpCon Technologies shall have the right (but not the obligation) in its sole discretion to refuseor move any Content that is made available via the Services. Customer agrees that they must evaluate, and bear all risks associated with, the use or distribution of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.
iii. Customer understands and agrees that the technical processing and transmission of the Services, including customer Content, may involve (a) transmissions over various networks; and (b) changes to conform andadapt to technical requirements of connecting networks or devices. Acceptance of adverting programs is subject to publisher media availability and OpCon Technologies is not liable for the failure of a publisher to accept advertising.
iv. Customer understands and agrees that by using the Services the customer authorizes OpCon Technologies to use information that they may provide to authenticate the customer employee's access to the customer's account (including, without limitation, your email address and log-ininformation) for the purposes of managing your video content (including, without limitation, uploading, distributing, editing and removing video content) on the customer's behalf and verifying customer's ownership of the account.
v. Customer agrees that they will not:
a. upload, post, transmit or otherwise make available any Content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another's privacy (including, but not limited to, any address, e-mail, phone number, or any other contact information without the consent of the owner of such information), hateful, or racially, ethnically, or otherwise objectionable;
b. harm minors in any way;
c. upload, post or otherwise transmit any Content that the customer does not have a right to transmit under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under nondisclosure agreements);
d. upload, post or otherwise transmit any Content that infringes any patent, trademark, trade secret, copyright, rights of privacy or publicity, or any other proprietary rights of any party;
e. upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment;
f. interfere with or disrupt the Services or servers or networks connected to the Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Services;
g. intentionally or unintentionally violate any applicable local, state, national or international law
h. "stalk" or otherwise harass another;
i. promote or provide instructional information about illegal activities, promote physical harm or injury against any group or individual, or promote any act of cruelty to animals. This may include, without limitation, providing instructions on how to assemble bombs, grenades and other weapons or incendiary devices;
j. or offer for sale or sell any item, good or service that (a) violates any applicable federal, state, or local law or regulation, (b) customer does not have full power and authority under all relevant laws and regulations to offer and sell, including all necessary licenses and authorization, or (c) OpCon Technologies determines, in its sole discretion, is inappropriate for sale through the Service provided by OpCon Technologies;
5. FEES, PAYMENT AND SUSPENSION OF SERVICES.
Customer will pay OpCon Technologies the Fees set forth in and in accordance with the Subscription Agreement. All Fees will be billed in advance on an annual basis and are due within thirty (30) days after receipt of invoice, unless otherwise agreed to in the Subscription Agreement. Overdue amounts shall accrue interest at the lesser of 1½% per month, or at the highest legal interest rate from the date due until paid. Customer shall reimburse SafetySpectrum for all expenses (including reasonable attorneys� fees) incurred by SafetySpectrum to collect any amount that is not paid when due. All Fees owed by Customer in connection with this TOS are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this TOS, or other transactions contemplated under this TOS, except for employment taxes and taxes based on SafetySpectrum's net income. If any Fees are more than thirty (30) days overdue, OpCon Technologies may (in addition to any other rights or remedies SafetySpectrum may have) discontinue the SafetySpectrum Service and suspend all User ID's and Customer's access to the SafetySpectrum Service until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
i. Definition. "Confidential Information" means all information regarding a party's business disclosed under this TOS, including, without limitation, technical, marketing, financial, employee, planning that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information of Customer includes the Customer Data Confidential Information of OpCon Technologies includes information derived from or concerning the SafetySpectrum Service, the SafetySpectrum System or the Documentation and the terms of this TOS.
ii. Obligation. Each party agrees (a) to hold the other party's Confidential Information in strict confidence, (b) to limit access to the other party's Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 6(ii) with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
iii. Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party's lawful possession prior to the disclosure, as shown by the receiving party's competent written records, (c) is independently developed by the receiving party without reference to the disclosing party's Confidential Information, as shown by the receiving party's competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
i. SafetySpectrum System and Technology. Customer acknowledges that OpCon Technologies retains all right, title and interest in and to the SafetySpectrum System and all software, materials, formats, interfaces, information, data, content and SafetySpectrum proprietary information and technology used by OpCon Technologies or provided to Customer in connection with the SafetySpectrum Service (the "SafetySpectrum Technology"), and that the SafetySpectrum Technology is protected by intellectual property rights owned by or licensed to OpCon Technologies. Other than as expressly set forth in this TOS, no license or other rights in the SafetySpectrum Technology are granted to the Customer, and all such rights are hereby expressly reserved by OpCon Technologies.
ii. Customer Data. Customer retains all right, title and interest in and to the Customer Data. OpCon Technologies will only use Customer Data to provide the SafetySpectrum Service for Customer under this TOS. Customer will be solely responsible for providing all Customer Data required for the proper operation of the SafetySpectrum Service. Customer grants to OpCon Technologies all necessary licenses in and to such Customer Data solely as necessary for OpCon Technologies to provide the SafetySpectrum Service to Customer. OpCon Technologies will not knowingly use or access any Customer Data unless authorized to do so by Customer and, in such circumstances, OpCon Technologies will access and use such Customer Data only as required to perform requested services on behalf of Customer.
8. TERM AND TERMINATION.
i. Term. The initial Subscription Term will commence when this TOS is agreed to by Customer and continue for one (1) year, unless otherwise agreed to in the Subscription Agreement. Thereafter, the Subscription Term will renew for additional one (1) year Terms unless either party gives the other party prior written notice of non-renewal within sixty (60) days prior to the expiration of the then-current Subscription Term renewal date. OpCon Technologies reserves the right to increase the Fees applicable to any renewal term upon written notice to Customer.
ii. Early Termination. Either party may terminate this TOS upon written notice if the other party materially breaches this TOS and does not cure such breach (if curable) within thirty (30) days after written notice of such breach. Either party may terminate the Trial Period upon written notice to the other party. Upon the termination of this TOS for any reason, (a) any amounts owed to OpCon Technologies under this TOS before such termination will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information and Customer Data) of the other party in its possession or control. OpCon Technologies agrees that upon any early termination of this TOS, OpCon Technologies will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by OpCon Technologies for a reasonable time period after termination. Thereafter, OpCon Technologies will remove all Customer Data from the SafetySpectrum System and all Customer access to or use of the SafetySpectrum System and SafetySpectrum Service will be immediately suspended. The rights and duties of the parties under Sections 2, 4, 5, 6, 7, 8.2, 9, 10, 11 and 12, as well as any payment obligations, will survive the termination or expiration of this TOS for any reason.
CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT:
i. USE OF THE SERVICE IS AT THE CUSTOMER'S SOLE RISK. THE SERVICES ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. OPCON TEHNOLOGIES EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESSFOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
ii. OPCON TEHNOLOGIES WILL MAKE COMMERCIALLY REASONABLE EFFORTS TO MAINTAIN THE SERVICES, HOWEVER, OPCON TEHNOLOGIES IS NOT RESPONSIBLE FOR ANY DAMAGE, LOSS OF DATA, CUSTOMER INFORMATION OR VENDOR DATA, REVENUE OR OTHER HARM TO BUSINESS ARISING OUT OF DELAYS, MISDELIVERY OR NONDELIVERY OF INFORMATION OR CONTENT, INACCURACY OF DATA USED FOR OPERATIONAL DECISIONS, RESTRICTION OR LOSS OF ACCESS OR CHANGES TO THE CUSTOMER'S SAFETYSPECTRUM ACCOUNT, BUGS OR OTHER ERRORS, UNAUTHORIZED USE DUE TO CUSTOMER SHARING OF ACCESS TO THE SERVICES, OR OTHER INTERACTION WITH THE SERVICES. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING-UP CUSTOMER DATA AND INFORMATION THAT MAY RESIDE ON THE SERVICES. OPCON TEHNOLOGIES DOES NOT WARRANT THAT (i) THE SERVICES WILL MEET CUSTOMER SPECIFIC REQUIREMENTS, (ii) THE SERVICE WILL BE UNINTERRUPTED,TIMELY,SECURE, OR ERROR-FREE, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILLBE ACCURATE OR RELIABLE, (iv) THE QUALITY OF THE PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER EXPECTATIONS,AND (v) ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED.
iii. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT CUSTOMER'S OWN DISCRETION AND RISK AND THAT CUSTOMER WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO CUSTOMER'S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL.
iv. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED THROUGH OR FROM THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
i. By OpCon Technologies. If any action is instituted by a third party against Customer based upon a claim that the SafetySpectrum Service or SafetySpectrum System, as delivered, infringes a United States patent, copyright or trademark, SafetySpectrum shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. SafetySpectrum may, at its option and expense, and as Customer's exclusive remedy hereunder, (a) procure for Customer the right to continue using the SafetySpectrum Service during the Term, (b) replace or modify the SafetySpectrum System or SafetySpectrum Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this TOS and Customer's access to the SafetySpectrum Service and refund any amounts previously paid for the SafetySpectrum Service attributable to the remainder of the then-current term of this TOS. SafetySpectrum shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this TOS by Customer or of the use of the SafetySpectrum Service or SafetySpectrum System (i) after it has been modified by Customer or a third party without SafetySpectrum's prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by SafetySpectrum. This Section sets forth the entire obligation of SafetySpectrum and the exclusive remedy of Customer against SafetySpectrum or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the SafetySpectrum Service or SafetySpectrum System.
ii. By Customer. If any action is instituted by a third party against SafetySpectrum (a) arising out of or relating to Customer's use of the SafetySpectrum System or SafetySpectrum Service (including claims by any customer or business partner of Customer); or (b) alleging that the Customer Data, or the use of Customer Data pursuant to this TOS, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of SafetySpectrum and shall pay all damages attributable to such claim which are finally awarded against SafetySpectrum or paid in settlement of such claim. Customer shall have no obligation under this Section for any claim or action that is described in Section 8.1 above or arises out of a breach of this TOS by SafetySpectrum.
iii. Conditions. Any party that is seeking to be indemnified under the provision of this Section 8 (an "Indemnified Party") must (a) promptly notify the other party (the "Indemnifying Party") of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a "Claim"), and (b) give the Indemnifying Party the sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 8 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party's prior approval of any such settlement or compromise only if (i) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (ii) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (iii) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party's assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party's expense.
11. LIMITATION OF LIABILITY.
OPCON TECHNOLOGIES' TOTAL CUMULATIVE LIABILITY TO CUSTOMER FOR ANY AND ALL CLAIMS ARISING FROM OR IN CONNECTION WITH THIS TOS (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), THE SAFETYSPECTRUM SERVICE AND THE SAFETYSPECTRUM SYSTEM, WILL NOT EXCEED THE GREATER OF (A) $100 OR (B) THE AMOUNTS ACTUALLY PAID TO SAFETYSPECTRUM BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE CUSTOMER'S FORMAL WRITTEN NOTICE OF THE CLAIM FOR LIABILITY HEREUNDER. ALL CLAIMS THAT CUSTOMER MAY HAVE AGAINST SAFETYSPECTRUM WILL BE AGGREGATED TO SATISFY THIS LIMIT AND MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT. IN NO EVENT WILL SAFETYSPECTRUM BE LIABLE FOR SPECIAL, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS TOS (UNDER ANY LEGAL THEORY INCLUDING CLAIMS IN CONTRACT OR TORT), INCLUDING, BUT NOT LIMITED TO, WITHOUT LIMITING ANY OBLIGATIONS UNDER THE SLA, INTERRUPTED COMMUNICATIONS, LOST DATA OR LOST PROFITS, AND DAMAGES THAT RESULT FROM INCONVENIENCE, DELAY OR LOSS OF USE OF ANY INFORMATION OR DATA OR OF THE SAFETYSPECTRUM SYSTEM OR SAFETYSPECTRUM SERVICE, EVEN IF SAFETYSPECTRUM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ANDNOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
12. GENERAL PROVISIONS.
i. Publicity. During any Subscription Term, SafetySpectrum and Customer may make public announcements, including but not limited to, press releases and media announcements, of the existence of this TOS and the relationship between the parties. All public announcements by either party concerning this TOS are subject to prior written approval by Customer and SafetySpectrum, which approval shall not be unreasonably withheld. The parties will use reasonable efforts to review and approve public announcements within three (3) days of submittal. Customer agrees to allow SafetySpectrum to use Customer's name in customer lists and other promotional materials describing Customer as a customer of SafetySpectrum and a user of the SafetySpectrum Service.
ii. Assignment. Neither party may assign any rights or obligations arising under this TOS, whether by operation or law or otherwise, without the prior written consent of the other; except that either party may assign this TOS without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing will be void. Customer agrees that SafetySpectrum may subcontract certain aspects of the SafetySpectrum Service to qualified third parties, provided that any such subcontracting arrangement will not relieve SafetySpectrum of any of its obligations hereunder. Subject to the foregoing limitation, this TOS shall inure to the benefit of and shall be binding on the parties' permitted successors and assignees.
iii. Governing Law and Venue. This TOS will be governed by and construed in accordance with the laws of the State of California without giving effect to principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this TOS. Any action or proceeding arising from or relating to this TOS must be brought in a federal or state court sitting in San Francisco, California, and each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding. If a dispute arising under this TOS results in litigation, the non-prevailing party shall pay the court costs and reasonable attorneys' fees of the prevailing party.
iv. Force Majeure. Any failure to perform or delay in the performance of any duties or obligations of SafetySpectrum set forth in this TOS (including any downtime) will not be considered a breach of this TOS if such failure or delay is caused by circumstances beyond SafetySpectrum's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, telecommunications or network failures or delays, computer failures involving hardware or software not within SafetySpectrum's possession or reasonable control and acts of vandalism (including network intrusions and denial of service attacks) ("Force Majeure Events"). SafetySpectrum will exercise reasonable care and diligence to avoid and/or mitigate in anticipation of or in response to such Force Majeure Events.
v. Notices. Any notice or other communication required or permitted under this TOS and intended to have legal effect must be given in writing to the other party at the address set forth above (each party may change its address from time to time upon written notice to the other party of the new address). Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (a) delivered personally, (b) sent via certified mail (return receipt requested) (c) sent via cable, telegram, telex, telecopier, fax (all with confirmation of receipt), or (d) sent by recognized air courier service.
vi. Severability and Waiver. In the event that any provision of this TOS is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this TOS will remain in full force and effect. Any waiver or failure to enforce any provision of this TOS on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
vi. Relationship of the Parties. The parties to this TOS are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this TOS.
viii. Counterparts. This TOS may be executed in counterparts, which taken together shall form one legal instrument.
ix. Entire TOS. This TOS is the entire understanding and TOS of the parties, and supersedes any and all previous and contemporaneous understandings, TOSs, proposals or representations, written or oral, between the parties, as to the subject matter hereof. Only a writing signed by both parties may modify it.
x. Modification to Terms. OpCon Technologies reserves the right to modify the terms and conditions of this TOS or its policies relating to the SafetySpectrum System and the SafetySpectrum Service at any time, effective upon posting of an updated version of this TOS on the SafetySpectrum website. Customer is responsible for regularly reviewing this TOS. Continued use of the Service after any such changes shall constitute the customer's consent to such changes.