SAFESITE SOFTWARE AS A SERVICE (SAAS)
TERMS AND CONDITIONS
THIS SAFESITE SOFTWARE AS A SERVICE (SAAS) TERMS AND CONDITIONS (“AGREEMENT”) GOVERNS YOUR USE OF THE SAFESITE PLATFORM. BY ACCEPTING THIS AGREEMENT, OR BY USING THE SAFESITE PLATFORM, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT USE THE SAFESITE PLATFORM.
The following terms shall have the meanings set forth below:
“Customer” means the person or entity that has ordered Services from SafeSite as described on the Order Form.
”Customer Data” means any information, data, text, photos, videos or other content supplied by Customer to the Services.
“Order Form” means the online form used to order Services through the SafeSite Platform.
“Premium Services” means premium Services which Customer can order from SafeSite and for which a fee is charged as detailed in the SafeSite fee schedule.
“SafeSite App” means the mobile application that is downloaded by Users for use in accessing and providing Customer Data to the SafeSite Platform.
“SafeSite Platform” means SafeSite’s workplace safety and compliance software platform.
“Services” means the services provided hereunder, including Support (as defined below) and access to the SafeSite Platform.
“Subscription Term” shall mean the period of time during which Customer may access and use the Services.
“User” means an employee or contractor of Customer that is authorized by Customer to access the SafeSite Platform.
LICENSE AND RESTRICTIONS.
License Grant. Subject to the terms and conditions of this Agreement, SafeSite hereby grants to Customer and its authorized Users a limited, non-exclusive, non-transferable license (without the right to sublicense) during the Subscription Term to (a) download a single copy of the SafeSite App to a single mobile device for the sole purpose of accessing the SafeSite Platform and (b) access and use the SafeSite Platform for internal workplace safety and compliance purposes.
License Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User to, (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of the SafeSite Platform or SafeSite App; (ii) modify, translate, or create derivative works based on any element of the SafeSite Platform or SafeSite App or any related documentation; (iii) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use the SafeSite Platform or SafeSite App; (iv) use the SafeSite Platform or SafeSite App for timesharing or service bureau purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer; (v) remove any proprietary notices from SafeSite materials furnished or made available to Customer; (vi) publish or disclose to third parties any evaluation of the SafeSite Platform or SafeSite App without SafeSite’s prior written consent; or (vii) use the SafeSite Platform or SafeSite App for any purpose other than its intended purpose.
Order Form. Customer may order Services by completing the online Order Form. No Order Form shall be binding on SafeSite until accepted in writing by an authorized representative of SafeSite. Customer may also order Premium Services, but such Premium Services are not included in the Service unless specifically ordered and paid for. In the event of any conflict between the terms of an Order Form and this Agreement, the terms of this Agreement shall prevail.
Passwords. SafeSite will either issue to Customer or Customer will create and issue to each User, a user identification and associated password for access to and use of the SafeSite Platform. Customer and its Users are responsible for maintaining the confidentiality of all user identification numbers and/or passwords and for ensuring that each user identification number and/or password is used only by the User to which it was issued. Customer is solely responsible for any and all activities that occur under Customer’s account and all charges incurred from use of the SafeSite Platform accessed with such user identification numbers and/or passwords. Customer will restrict its Users from sharing passwords. Customer agrees to immediately notify SafeSite of any unauthorized use of Customer’s account, any user identification number and/or password, or any other breach of security known to Customer. SafeSite shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
Security. SafeSite will deploy reasonable security precautions in accordance with industry standards intended to protect against unauthorized access to any Customer Data stored on the SafeSite. However, Customer acknowledges that, notwithstanding the security precautions deployed by SafeSite, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the SafeSite Platform and Customer Data. SafeSite cannot and does not guarantee the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any User authentication or security of the SafeSite Platform. Customer will immediately notify SafeSite of any breach, or attempted breach, of security known to or reasonably suspected by Customer.
SUPPORT. SafeSite may provide to Customer the technical support services on a 24/7 basis (subject to force majeure events as described in Section 14) for the SafeSite Platform (collective, “Support”) as described in the SafeSite support policy at [insert URL].
Hardware/Software. Customer is responsible for (i) obtaining, deploying and maintaining all computer hardware, software and communications equipment needed to access and use the SafeSite Platform, (ii) contracting with third parties that provide services related to Customer being able to access and use the SafeSite App and SafeSite Platform (e.g., ISP, wireless carrier, telecommunications, etc.), and (iii) paying all third-party fees and access charges (including without limitation any mobile data charges) incurred while accessing and using the SafeSite Platform. SafeSite will not be required to supply any hardware, software or equipment to Customer by reason of this Agreement.
Customer Data. Customer is solely responsible for collecting and providing Customer Data to the SafeSite Platform, including without limitation, all costs and liabilities associated with such Customer Data. Customer retains ownership of any intellectual property rights that it holds in the Customer Data. When Customer uploads, submits, stores, sends or receives Customer Data to or through the Services, it grants SafeSite (and those it works with) a worldwide license to use, host, store, reproduce, modify, create derivative works (such as those resulting from translations, adaptations or other changes we make so that your content works better with our Services), communicate, perform, display and distribute such Customer Data solely for purposes of operating, promoting, and improving our Services, and to develop new ones, provided that SafeSite will not disclose Customer Data to any third party without the prior approval of Customer, except to authorized users, as required by law or legal process (subject to Section 9.2), or to third party service providers used to provide the Services (which service providers will be required to maintain the confidentiality of such Customer Data in accordance with this Agreement). This license continues even if Customer stops using the Services (for example, SafeSite may maintain Customer Data for archival purposes as set forth in Section 5.3 below, and for legal purposes and SafeSite shall have a continuing irrevocable right to use Aggregated Statistics and Risk Scoring as described in Section 7.2 below).
Retention and Removal of Customer Data. SafeSite shall maintain Customer Data for up to five (5) years after such Customer Data is first posted to the SafeSite Platform, provided that SafeSite may at any time notify Customer that it intends to cease maintaining such Customer Data; in such a case, Customer shall have the right to receive a copy of the Customer Data in native format, at a fee to specified by SafeSite, by requesting the same within thirty (30) days of the date of notice from SafeSite of its intent to cease maintaining Customer Data. In addition, subject to any applicable laws that require SafeSite to continue to maintain Customer Data, such as a subpoena or a litigation hold, Customer may at any time request that SafeSite remove Customer Data that has been provided to the SafeSite Platform. Customer is solely responsible for and shall indemnify SafeSite from and against any liability, cost, loss, lawsuit, claim, investigation, sanction or expense (including attorney’s fees) that arises out of the removal of any Customer Data at the request of Customer.
Compliance with Laws. Each party represents and warrants, during the term of this Agreement, that it is in compliance with and will comply with all applicable employment, workplace safety and privacy and data protection laws and regulations applicable to its business and its performance of its obligations under this Agreement.
Conduct. Customer shall be solely responsible for its actions and the actions of its Users while using the SafeSite Platform. Customer acknowledges and agrees (i) that Customer is responsible for selecting appropriate remediation for, and resolving, any issues found on Customer’s network, hardware, software, or third party services relied on by Customer to access and use the SafeSite Platform (collectively, “Customer Items”); and (ii) that SafeSite is not liable for, or responsible to, remediate any issues found regarding Customer Items. Customer agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of the SafeSite Platform, including without limitation, all labor and work place safety laws; (b) not to send or store data on or to the SafeSite Platform which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain viruses, worms, Trojan Horses, corrupted files, or any other similar software or programs, harmful code or data that may damage the operation of the SafeSite Platform or another’s computer or mobile device; (d) not to use the SafeSite Platform for illegal, fraudulent, unethical or inappropriate purposes; (e) not to interfere or disrupt networks connected to the SafeSite Platform or interfere with other ability to access or use the SafeSite Platform; (f) not to distribute, promote or transmit through the SafeSite Platform any unlawful, harmful, defamatory, obscene, pornographic or otherwise objectionable material of any kind or nature; (g) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (h) not to interfere with another customer’s use and enjoyment of the SafeSite Platform or another person or entity’s use and enjoyment of similar services; (i) not to use the SafeSite Platform in any manner that impairs the SafeSite Platform, including without limitation the servers and networks on which the SafeSite Platform are provided; (j) not to run Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while Customer is not logged into the SafeSite Platform, or that otherwise interfere with the proper working of the SafeSite Platform (including by placing an unreasonable load on the SafeSite Platform infrastructure); (k) not to launch any program that “Crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the SafeSite Platform (through use of manual or automated means); and (l) to comply with all regulations, policies and procedures of networks connected to the SafeSite Platform and SafeSite’s service providers. Customer acknowledges and agrees that SafeSite neither endorses the contents of any Customer communications or Customer Data nor assumes any responsibility for any offensive material contained therein, any infringement of third party intellectual property rights arising therefrom or any crime facilitated thereby. SafeSite may remove any content posted or stored using the SafeSite Platform or transmitted through the SafeSite Platform that violates the foregoing provisions of this Section 5.4, without notice to Customer. Notwithstanding the foregoing, SafeSite does not and is not obligated to verify, authenticate, monitor or edit the Customer Data or any other information or data input into or stored in the SafeSite Platform for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data input into the SafeSite Platform. SafeSite does not guarantee or make any promises regarding the accuracy or completeness of the Customer Data. SafeSite reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in this Agreement at any time. SafeSite may deliver notice of such updated requirements to Customer via e-mail. Customer’s continued access to and use of the SafeSite Platform following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof.
FEES AND TAXES.
Fees. Customer agrees to pay the fees and charges set forth in SafeSite pricing schedule, including for Support and Premium Services (collectively, “Fees”) by means of an approved payment method (such as a valid credit card) (“Payment Method”). Customer hereby expressly agrees that SafeSite may charge Customer’s provided Payment Method for any and all recurring Fees. Any recurring Fees will be due on the first of the month for a monthly subscription or on the anniversary date for any annual subscription. All Fees are quoted and payable in United States currency. Fees are nonrefundable once paid.
Taxes. The Fees are exclusive of all sales, use, value added and other taxes or duties and Customer shall pay all such taxes (excluding taxes based on SafeSite’s net income).
Late Payments. Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of one and a half percent (1.5%) of the outstanding balance per month (being 18% per annum), or the maximum rate permitted by law, from the date such payment is due until the date paid. Customer shall also pay all sums expended (including reasonable legal fees) in collecting overdue payments.
SafeSite Platform. As between SafeSite and Customer, all right, title and interest in the SafeSite Platform, SafeSite App, the Services and any other SafeSite materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the SafeSite Platform, including all copyright rights, patent rights, trademark rights, and other intellectual property rights in each of the foregoing, belong to and are retained solely by SafeSite or SafeSite’s licensors and providers, as applicable. Customer hereby does and will irrevocably assign to SafeSite all ideas, feedback and suggestions made by Customer to SafeSite regarding the SafeSite Platform (collectively, “Feedback”) and all intellectual property rights in the Feedback. Customer agrees to execute any documents or take any actions as may reasonably be necessary, or as SafeSite may reasonably request, to perfect such ownership of the Feedback. To the extent any of the rights, title and interest in and to Feedback or intellectual property rights therein cannot be assigned by Customer to SafeSite, Customer hereby grants to SafeSite an exclusive, royalty-free, transferable, irrevocable, worldwide, fully paid-up license (with rights to sublicense through multiple tiers of sublicensees) to fully use, practice and exploit those non-assignable rights, title and interest. Except for the express licenses granted in Section 2.1 (License Grant), there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in this Agreement are reserved by SafeSite.
Risk Scoring/Aggregated Statistics. Notwithstanding anything else in this Agreement or otherwise, SafeSite may monitor Customer’s use of the Services and use data and information related to such use, and any Customer Data to create insurance risk scoring (“Risk Scoring”) with respect to Customer that with Customer’s approval, can be provided to underwriters for quoting and issuing workers compensation insurance policies. SafeSite may further monitor and analyze Customer’s use of the Services and use data and information related to such use, and any Customer Data, in an aggregate and anonymous manner, including for research purposes and industry safety trends, and to compile statistical and performance information related to the provision and operation of the Services (“Aggregated Statistics”). All right, title and interest in the Aggregated Statistics and Risk Scoring and all intellectual property rights therein, belong to and are retained solely by SafeSite. Customer agrees that SafeSite may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or specific Customer Data.
TERM AND TERMINATION.
Term; Renewal. This Agreement commences on Customer’s online acceptance and shall continue on a monthly basis thereafter until terminated in accordance with this Section 8 (“Subscription Term”). Either party may terminate this Agreement effective at the end of the then current monthly Subscription Term by providing the other party at least thirty (30) days prior written notice prior to the end of the then current Subscription Term. SafeSite shall not pro-rate any Fees based on termination mid-month; Fees will be due through the end of the following month.
Termination for Breach; Insolvency. Either party may terminate this Agreement upon written notice if the other party has breached a material term of this Agreement and has not cured such breach within thirty (30) days of receipt of written notice from the non-breaching party specifying the breach. Either party may terminate this Agreement if (i) the other party has a receiver appointed for it or its property; (ii) the other party makes an assignment for the benefit of creditors; (iii) any proceedings are commenced by, for or against the other party under any bankruptcy, insolvency or debtor’s relief law; or (iv) the other party is liquidated or dissolved.
Failure to Pay/Customer Conduct. SafeSite may suspend or terminate Customer’s and Users’ access to the SafeSite Platform, at SafeSite’s sole option, with notice to Customer, if: (i) any payment is delinquent by more than ten (10) days after notice of late payment from SafeSite and such suspension or termination shall continue until payment of all amounts owed are received, or (ii) if Customer breaches Section 5.4 (Compliance with Laws) or Section 5.4 (Conduct) and such suspension or termination will continue until the applicable issue is resolved.
Effect of Termination. SafeSite shall not be liable to Customer or any third party for SafeSite’s suspension or termination of Customer’s access to, or right to use, the SafeSite Platform as such termination or suspension is authorized under this Agreement. Upon termination or expiration of this Agreement, Customer will be obligated to pay the balance due of any amounts owed to SafeSite accruing during the term of this Agreement. Upon the effective date of expiration or termination of this Agreement for any reason, whether by Customer or SafeSite, (i) Customer’s right to access and use the SafeSite Platform shall immediately cease, (ii) Customer and its Users’ access to the SafeSite Platform will terminate and (iii) Customer shall cease accessing and using the SafeSite Platform and SafeSite may take such actions to preclude such access and use.
Survival. The following Sections of this Agreement shall survive the termination or expiration of this Agreement: Sections 5.3 (Retention and Removal of Customer Data), 6 (Fees and Taxes), 7 (Ownership), 8 (Term and Termination), 9 (Confidentiality), 10 (OSHA and Other Safety Requirements and Recordkeeping), 11 (Warranty Disclaimer), 12 (Indemnification), 13 (Limitation of Liability), and 14 (General).
Obligations. Each of the parties agrees to maintain in confidence any non-public information of the other party, whether written or otherwise, disclosed by the other party in the course of performance of this Agreement that a party knows or reasonably should know is considered confidential by the disclosing party (“Confidential Information”). The parties hereby agree that SafeSite’s Confidential Information includes the terms and conditions of this Agreement, and any discussions related thereto as well as the SafeSite Platform and materials provided with respect to the SafeSite Platform and that Customer’s Confidential Information includes the Customer Data, which SafeSite will not share with any third party except as set forth herein. The receiving party shall not disclose, use, transmit, inform or make available to any entity, person or body any of the Confidential Information, except as a necessary part of performing its obligations hereunder, and shall take all such actions as are reasonably necessary and appropriate to preserve and protect the Confidential Information and the parties’ respective rights therein, at all times exercising at least a reasonable level of care. Each party agrees to restrict access to the Confidential Information of the other party to those employees or agents who require access in order to perform hereunder, and, except as otherwise provided, neither party shall make Confidential Information available to any other person or entity without the prior written consent of the other party.
Exclusions. Confidential Information shall not include any information that is (i) already known to the receiving party at the time of the disclosure; (ii) publicly known at the time of the disclosure or becomes publicly known through no wrongful act or failure of the receiving party; (iii) subsequently disclosed to the receiving party on a non-confidential basis by a third party not having a confidential relationship with the other party hereto that rightfully acquired such information; or (iv) communicated to a third party by the receiving party with the express written consent of the other party hereto. A disclosure of Confidential Information that is legally compelled to be disclosed pursuant to a subpoena, summons, order or other judicial or governmental process shall not be considered a breach of this Agreement; provided that unless legally prohibited from doing so, the receiving party provides prompt notice of any such subpoena, order, or the like to the other party so that such party will have the opportunity to obtain a protective order or otherwise oppose the disclosure.
Destruction or Return of Confidential Information. Upon expiration or termination of this Agreement for any reason, each party shall promptly return to the other party, or destroy, as the parties agree, all copies of the other party’s Confidential Information, except that SafeSite may retain Customer Data, Risk Scoring and Aggregated Statistics as provided in this Agreement. All copies, notes or other derivative material relating to the Confidential Information shall be promptly retrieved or destroyed, as agreed, and no such material shall be retained or used by the receiving party in any form or for any reason.
OSHA AND OTHER SAFETY REQUIREMENTS AND RECORDKEEPING.
Customer is solely responsible for ensuring that its Customer Data and practices relating to workplace safety comply with all applicable laws, rules, regulations and orders, including without limitation, the Occupational Safety and Health Act of 1970 (OSHA) and implementing regulations thereunder and any equivalent state laws. Customer is solely responsible for making all reports required by OSHA and applicable laws. Customer is responsible for ensuring that it maintains any and all records, including all Customer Data, required under the OSHA recordkeeping rules and under other applicable laws.
WARRANTY DISCLAIMER. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SAFESITE AND ITS LICENSORS AND SUPPLIERS EXPRESSLY DISCLAIM ALL, AND MAKE NO, WARRANTIES (WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE ARISING IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE), INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS. SAFESITE DOES NOT WARRANT THAT THE SAFESITE PLATFORM WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SAFESITE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE.
SafeSite. SafeSite shall defend, or at its option settle, any third party claims or suits against Customer based on a claim that the SafeSite Platform infringes any US patent issued as of the Effective Date or any copyright or trade secret; and SafeSite shall pay any final judgment entered against Customer in any such claim or suit or SafeSite agreed to settlement amount; provided (a) SafeSite is promptly notified by Customer in writing of such claim or suit, (b) SafeSite or its designee has sole control of such defense and/or settlement, and (c) Customer gives all information and assistance reasonably requested by SafeSite or such designee, at SafeSite’s expense. To the extent that use of the SafeSite Platform is enjoined, SafeSite may at its option either (i) procure for Customer the right to use the SafeSite Platform, (ii) replace the SafeSite Platform with other suitable solution, or (iii) terminate this Agreement and refund to Customer any unapplied Fee(s) paid by Customer prior to such termination. SafeSite shall have no liability under this Section or otherwise to the extent a claim or suit is based upon use of the SafeSite Platform in combination with software or hardware not provided by SafeSite. The terms in this Section shall be Customer’s sole and exclusive remedy in connection with third party claims of infringement
Customer. Customer will indemnify, defend and hold harmless SafeSite, its directors, officers, employees, agents, successors and assigns from any claims, actions, suits, liabilities, losses, damages, costs and expenses (including reasonable attorneys’ fees) arising out of or related to (i) Customer’s breach of the representations, warranties, covenants and conditions in this Agreement, (ii) the provision of Customer Data to SafeSite, (iii) the storage, processing or display of Customer Data by the SafeSite Platform, or (iv) any safety or other compliance decision or action taken by Customer based on the Services; provided (a) Customer is promptly notified by SafeSite in writing of such claim or suit, (b) Customer or its designee has sole control of such defense and/or settlement, and (c) SafeSite gives all information and assistance reasonably requested by Customer or such designee, at Customer’s expense.
LIMITATION OF LIABILITY.
Limitation on Direct Damages.
IN NO EVENT SHALL SAFESITE’S AGGREGATE LIABILITY, IF ANY, ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTH PERIOD PRIOR TO CLAIM, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, LESS, IN ALL CIRCUMSTANCES, ANY AMOUNTS PREVIOUSLY PAID (AS OF THE DATE OF SATISFACTION OF SUCH LIABILITY) BY SAFESITE TO CUSTOMER IN SATISFACTION OF ANY LIABILITY UNDER THIS AGREEMENT.
Waiver of Consequential Damages.
IN NO EVENT SHALL SAFESITE OR ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA OR LOSS OF PROFITS, WITHOUT REGARD TO WHETHER SUCH CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SAFESITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Essential Purpose. Customer acknowledges that the terms in this Section 13 are an essential bases of the bargain described in this Agreement and that, were SafeSite to assume any further liability, the Fees would out of necessity, be set much higher.
SafeSite may subcontract to third parties some or all of SafeSite’s obligations under this Agreement. All notices to a party shall be in writing and sent to the addresses specified in above or such other address as a party notifies the other party, and shall be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement may not be assigned or transferred by Customer, including without limitation, by merger, operation of law or otherwise, without SafeSite’s prior written consent. Any assignment in derogation of the foregoing is null and void. SafeSite may freely assign or transfer this Agreement. This Agreement shall inure to the benefit of each party’s successors and permitted assigns. This Agreement, together with all addenda, schedules, and exhibits, constitutes the entire agreement between the parties and supersedes all prior or contemporaneous agreements and understandings between the parties relating to the subject matter hereof. The failure of SafeSite to require performance by Customer of any provision hereof shall not affect the full right to require such performance at any time thereafter; nor shall the waiver by SafeSite of a breach of any provision hereof be taken or held to be a waiver of the provision itself. Except as otherwise provided herein, this Agreement may be amended or superseded only by a written instrument signed by both parties. This Agreement shall be governed by the laws of the state of California, excluding its conflict of laws rules. The parties further agree that the exclusive venue and jurisdiction any dispute arising or relating to this Agreement shall be a court of competent jurisdiction located in San Francisco, California. Any provision of this Agreement held to be unenforceable shall not affect the enforceability of any other provisions of this Agreement. Neither party shall be in breach of this Agreement if its failure to perform any obligation under this Agreement, except for payment of Fees, is caused by events or conditions beyond that party’s reasonable control, including, without limitation, acts of God, civil commotion, war, strikes, labor disputes, third party Internet service interruptions or slowdowns, vandalism or “hacker” attacks, acts of terrorism or governmental demands or requirements. Pre-printed terms and conditions on or attached to any Customer purchase order or other document shall be of no force or effect.
Upon prior written approval of Customer, SafeSite may use Customer’s name as part of a general list of customers and may refer to Customer as a user and customer of the SafeSite Platform in its general advertising and marketing materials.