OSHAADVISOR LICENSE AGREEMENT
This License Agreement (the ‘License Agreement) constitutes a legal agreement between OSHAadvisor, Inc. (‘OSHAadvisor’) and the Subscriber and governs all use of the OSHAadvisor Software (as defined below). This License Agreement takes effect when the Subscriber clicks the ‘I Accept’ button presented with this License Agreement (the ‘Effective Date’). By accessing, browsing, or using the OSHAadvisor Software, Subscriber acknowledges that Subscriber has read, understands, and agrees to be bound by this License Agreement. Each time Subscriber accesses the OSHAadvisor Software, Subscriber agrees to be bound by the License Agreement then in effect. If Subscriber does not agree to the terms of this License Agreement, the Subscriber should not use the OSHAadvisor Software.
a. ‘Content’ means all information and materials available through the OSHAadvisor Software.
b. ‘Customer Data’ means data in electronic form input or collected through the OSHAadvisor Software by or from Subscriber.
c. ‘Effective Date’ has the meaning set forth in the introductory paragraph.
d. ‘End User’ means, if the Subscriber is an individual, the Subscriber, and if the Subscriber is a company or a governmental entity, the person or persons authorized to access the OSHAadvisor Software by the Subscriber.
e. ‘Initial Term’ shall have the meaning set forth in Section 10(a).
f. ‘License’ has the meaning set forth in Section 2.
g. ‘License Agreement’ has the meaning set forth in the introductory paragraph.
h. ‘License Fee’ has the meaning set forth in Section 3(a).
i. ‘OSHAadvisor Software’ means the OSHAadvisor software that may be accessed via the OSHAadvisor website, the OSHAadvisor website, the Content and all services available through the OSHAadvisor Software.
k. ‘Renewal Terms’ shall have the meaning set forth in Section 10(a).
l. ‘Subscriber’ means the person or company or government entity that enters into this License Agreement with OSHAadvisor and the End User designated by the Subscriber.
m. ‘Term’ shall have the meaning set forth in Section 10(a).
OSHAadvisor grants to Subscriber a non-exclusive and non-transferable license for the Subscriber’s End User to connect to and access the OSHAadvisor Software pursuant to this License Agreement (the ‘License’). All Licenses granted hereunder shall be for a period of one (1) year from payment of the License Fee. Each License is restricted to a single End User. Subscriber rights in the OSHAadvisor Software will be limited to those expressly granted in this Agreement. OSHAadvisor reserves all rights and licenses in and to the OSHAadvisor Software not expressly granted to Subscriber under this License Agreement.
b. All License Fees are in U.S. dollars unless otherwise specified. All amounts payable under this License Agreement are exclusive of all sales, use, value-added, excise, property, withholding, and other taxes and duties. Subscriber will pay all taxes and duties assessed by any authority in connection with any License Fees paid. Subscriber will promptly reimburse OSHAadvisor for any and all taxes or duties that OSHAadvisor may be required to pay in connection with any License Fees paid. This provision does not apply to franchise taxes, taxes based on OSHAadvisor’s income, or any taxes for which Subscriber is exempt, provided Subscriber has furnished to OSHAadvisor a valid tax exemption certificate.
c. Without limiting any other rights and remedies available to it, OSHAadvisor may terminate the Term of this License Agreement and the License granted hereunder in the event of nonpayment by Subscriber of any License Fees.
4. CONDITIONS OF USE.
As a condition of the grant by OSHAadvisor of the License, Subscriber hereby agrees as follows:
a. Subscriber shall not (and shall not permit any employee or other third party to) copy, use, analyze, reverse engineer, decompile, disassemble, translate, convert, or apply any procedure or process to the OSHAadvisor Software in order to ascertain, derive, and/or appropriate for any reason or purpose, the source code or source listings for the OSHAadvisor Software or any other trade secret information or process contained in the OSHAadvisor Software.
b. Subscriber shall not alter or remove any notices, graphics or text contained on or in the OSHAadvisor Software; or modify the OSHAadvisor Software in any form, without the express written permission from OSHAadvisor.
c. Subscriber will not use, intentionally or unintentionally, any part of the OSHAadvisor Software in a manner contrary to or in violation of any applicable international, national, federal, state, or local law, rule, or regulation having the force of law.
d. Subscriber will not use the OSHAadvisor Software in any manner that could harm, infect, take over, disable, overburden, or otherwise impair the OSHAadvisor Software, including, but not limited to, the servers, networks, and other components connected to or used for the OSHAadvisor Software.
e. Subscriber will not interfere with any other party's use and enjoyment of the OSHAadvisor Software.
f. Subscriber will not upload, post, or otherwise transmit to the OSHAadvisor Software any materials that Subscriber 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).
g. Subscriber will not upload, post, or otherwise transmit to the OSHAadvisor Software 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.
h. Subscriber will not attempt to gain unauthorized access to any services, accounts, computer systems, or networks connected to any server used for the OSHAadvisor Software, through password mining, hacking, or any other means.
i. Subscriber will not seek to gain access to any materials or information through any means not intentionally made available by OSHAadvisor.
j. Subscriber will not make any use of the trademarks, service marks, trade names, logos, and graphics on the OSHAadvisor Software without OSHAadvisor’s prior written consent.
k. Subscriber will not use any network monitoring or discovery software to determine the site architecture, or extract information from the OSHAadvisor Software about usage, individual identities, or users.
l. Subscriber will not use any robot, spider, other automatic software or device, or manual process to monitor or copy the OSHAadvisor Software without OSHAadvisor’s prior written consent.
m. Subscriber shall not in connection with any access or use of the OSHAadvisor Software, upload, store, post, email, distribute, publish, or otherwise disseminate any material that is harmful, threatening, obscene, vulgar, defamatory, harassing, abusive, libelous or unlawful, or which promotes or sponsors any activity of like nature.
n. Subscriber shall comply in all respects with the AWS Acceptable Use Policy, found at https://aws.amazon.com/aup/, as may be amended in the future.
5. USER INFORMATION.
Subscriber will be required to register and create an account to access the OSHAadvisor Software. By registering or creating an account, Subscriber agrees to provide accurate and complete information and to inform OSHAadvisor of any changes to that information. Each registration is for a single End User only, unless otherwise expressly provided on the registration page. Subscriber is responsible for maintaining the confidentiality of Subscriber’s account and password and for restricting access to the Subscriber’s computer, and Subscriber agrees to accept responsibility for all activities that occur under Subscriber’s account or password. If Subscriber believes there has been unauthorized use, Subscriber must notify OSHAadvisor immediately.
6. MODIFICATIONS TO OSHAADVISOR SOFTWARE.
OSHAadvisor reserves the right at any time to modify or discontinue, temporarily or permanently, the OSHAadvisor Software (or any part thereof) with or without notice. Subscriber agrees that OSHAadvisor will not be liable to Subscriber or to any third party for any modification, suspension or discontinuance of the OSHAadvisor Software.
OSHAadvisor endeavors to provide Content that is current and accurate. However, errors and misprints may occur.
8. AUTHORIZED USE OF MATERIALS ON OSHAADVISOR SOFTWARE.
All Content published or accessible through the OSHAadvisor Software and the OSHAadvisor Software is protected by copyright, trademark and other intellectual property and proprietary rights and laws. All Content and the OSHAadvisor Software is copyright of OSHAadvisor except where indicated otherwise. Certain names, words, titles, phrases, logos, icons, graphics, designs or other content on the OSHAadvisor Software are trade names or trade-marks owned by OSHAadvisor or third parties, and may not be used without permission.
Subscriber agrees that Subscriber is only authorized to visit, view and to retain pages of the OSHAadvisor Content solely for Subscriber’s own individual non-commercial use, and that Subscriber shall not duplicate, download, publish, modify or otherwise distribute the Content for any purpose other than for Subscriber’s own individual, noncommercial use unless otherwise specifically authorized by OSHAadvisor. OSHAadvisor may post legal notices and various credits on pages of the OSHAadvisor Software, which may not be removed. Subscriber shall not remove these notices or credits, or any additional information contained along with the notices and credits.
10. TERM AND TERMINATION
a. This License Agreement and the License shall continue in force and effect for a period of one (1) year from the Effective Date unless terminated pursuant to its provisions (the ‘Initial Term’). The Term of this Agreement shall automatically renew for additional one (1) year periods commencing on the anniversary of the Effective Date (each a ‘Renewal Term’). The Initial Term and the Renewal Term shall collectively be referred to as the ‘Term’ for purposes of this Agreement.
b. This License Agreement and the License granted hereunder may be terminated by OSHAadvisor in accordance with the following:
i. Without the necessity of notice or demand, if Subscriber becomes the subject of any bankruptcy or insolvency proceeding which is not stayed or dismissed within 30 days after the commencement thereof;
ii. If Subscriber breaches any provision of this License Agreement, including failure to pay the License Fee when due.
c. The Term of this Agreement may be terminated effective as of the last day of the Initial Term or the current Renewal Term by either Subscriber or OSHAadvisor provided that the terminating party provides notice of such termination at least thirty (30) days prior to the anniversary date of the Effective Date.
d. Upon the termination of the Term of this Agreement for any reason:
(i) Subscriber’s right to access and use the OSHAadvisor Software shall immediately cease;
(ii) OSHAadvisor may permanently erase any Customer Data.
e. Termination of the Term of this License Agreement or any License granted hereunder shall not limit the remedies otherwise available to either party.
11. DISCLAIMER OF WARRANTIES
a. SUBSCRIBER ACKNOWLEDGES THAT OSHAADVISOR PROVIDES THE OSHAADVISOR SOFTWARE INCLUDING THE CONTENT ‘AS IS,’ WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO:
i. WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, OMISSIONS, COMPLETENESS, CURRENTNESS, AND DELAYS;
ii. WARRANTIES THAT ACCESS TO THE OSHAADVISOR SOFTWARE WILL BE UNINTERRUPTED, SECURE, COMPLETE, OR ERROR FREE; AND
iii. WARRANTIES AS TO THE LIFE OF ANY URL OR THIRD-PARTY WEB SERVICE.
b. BY ACCESSING, BROWSING, OR USING THE OSHAADVISOR SOFTWARE, SUBSCRIBER ACKNOWLEDGES THAT:
i. PROVISION OF THE OSHAADVISOR SOFTWARE INCLUDING THE CONTENT ENTAILS THE LIKELIHOOD OF SOME HUMAN AND MACHINE ERRORS, DELAYS, INTERRUPTIONS, AND LOSSES, INCLUDING THE INADVERTENT LOSS OF DATA OR DAMAGE TO MEDIA;
ii. THE OSHAADVISOR SOFTWARE, AND THE PRODUCTS AND SERVICES REFERENCED HEREIN MAY NOT SATISFY SUBSCRIBER’S REQUIREMENTS NOT EXPRESSLY STATED IN THIS LICENSE AGREEMENT.
c. The provisions of this License Agreement allocate the risks between Subscriber and OSHAadvisor. OSHAadvisor’s pricing reflects this allocation of risk and the limitations of liability specified herein.
12. LIMITATIONS OF LIABILITY
IN NO EVENT WILL OSHAADVISOR BE LIABLE, IN CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE, FOR INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF, OR IN CONNECTION WITH THE USE OF THE OSHAADVISOR SOFTWARE OR THE CONTENT, WHETHER OR NOT OSHAADVISOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, INCLUDING BUT NOT LIMITED TO ANY CLAIM(S) RELATING IN ANY WAY TO SUBSCRIBER’S INABILITY OR FAILURE TO PERFORM RESEARCH OR OTHER WORK OR TO PERFORM SUCH RESEARCH OR WORK PROPERLY OR COMPLETELY, EVEN IF ASSISTED BY OSHAADVISOR OR ANY DECISION MADE OR ACTION TAKEN BY SUBSCRIBER IN RELIANCE UPON THE AVAILABILITY OF OR CONTENT MADE AVAILABLE THROUGH THE OSHAADVISOR SOFTWARE.
TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF OSHAADVISOR FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO THE OSHAADVISOR SOFTWARE, OSHAADVISOR’S TOTAL LIABILITY SHALL BE LIMITED TO SUBSCRIBER’S DIRECT DAMAGES ACTUALLY INCURRED UP TO TWO HUNDRED FIFTY DOLLARS ($250).
THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM SUBSCRIBER’S USE OR SUBSCRIBER’S INABILITY TO USE THE OSHAADVISOR SOFTWARE OR THE CONTENT, OR ANY OTHER MATTER ARISING FROM OR RELATING TO THE OSHAADVISOR SOFTWARE. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO SUBSCRIBER. IF SUBSCRIBER IS LOCATED IN CALIFORNIA, SUBSCRIBER HEREBY waives California Civil Code §1542, which says: ‘A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.’
13. No Legal Advice
The Content and other information available on the OSHAadvisor Software are not intended to and shall not be used as legal advice. No attorney-client relationship is formed. Subscriber may use the Content, information, and services on the OSHAadvisor Software at Subscriber’s own risk.
14. Links to Third Party Sites
The OSHAadvisor Software may provide links to other third-party world wide web sites or resources. Access to and use of any other site, product or service, including those referenced herein or linked to from this site, are governed by the terms of the subscriber agreement or other agreement related to that service or site. OSHAadvisor makes no representations whatsoever about any other web site which Subscriber may access through the OSHAadvisor Software. Because OSHAadvisor has no control over such third party sites and resources, Subscriber acknowledges and agrees that OSHAadvisor is not responsible for the availability of such external sites or resources and is not responsible or liable for any content, advertising, products, services or other materials on or available from such sites or resources. It is up to Subscriber to take precautions to ensure that whatever Subscriber selects for Subscriber’s use is free of such items as viruses, worms, trojan horses and other items of a destructive nature.
References on the OSHAadvisor Software to any names, marks, products or services of any third parties or hypertext links to third party sites or information are provided solely as a convenience to Subscriber, and do not constitute or imply an endorsement, sponsorship or recommendation of, or affiliation with the third party or its products and services. OSHAadvisor makes no representation or warranty as to any third party content, products or services, and Subscriber agrees that OSHAadvisor shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such third-party content, products or services available on or through any such site or resource.
Subscriber hereby agrees to indemnify and hold OSHAadvisor, its affiliates, partners, attorneys, staff, and each of their respective directors, officers, shareholders, employees, consultants, agents and suppliers harmless from any costs or damages or any kind, including reasonable legal fees, arising from a claim or demand pertaining to Subscriber’s use of the OSHAadvisor Software, breach of this License Agreement, or Subscriber’s violation of any rights of another.
a. In the event any action is brought by OSHAadvisor to enforce any provision of this License Agreement or to declare a breach of this Agreement, OSHAadvisor shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
b. Subscriber shall comply with all then current export and import laws and regulations of the United States and such other governments as are applicable to the OSHAadvisor Software. Subscriber hereby certifies that Subscriber will not directly or indirectly, export, re-export, or transmit the OSHAadvisor Software or related Content, information, media, or products in violation of United States laws and regulations.
c. The parties are independent contractors and nothing in this Agreement shall be deemed to make either party an agent, employee, partner or joint venturer of the other party. Neither party shall have the authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
d. OSHAadvisor may provide any notice to Subscriber under this Agreement by: (i) posting a notice on the OSHAadvisor Software; or (ii) sending a message to the email address then associated with Subscriber’s account. Notices provided by posting on the OSHAadvisor Software will be effective upon posting and notices provided by email will be effective when sent to the email address then associated with Subscriber’s account when the email is sent, whether or not Subscriber actually receives the email. Any notice required to be given to OSHAadvisor under the terms of this License Agreement shall be in writing and shall be sent by certified mail return receipt requested to the following address:
1100 University Avenue, Suite 213
Rochester, NY 14607
Notices sent to OSHAadvisor shall be deemed received upon actual receipt by OSHAadvisor.
e. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of this License Agreement invalid or otherwise unenforceable in any respect. If any portion of this Agreement is determined to be or becomes unenforceable or illegal, such portion shall be deemed eliminated and the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such deletion.
f. The obligations of the parties under this Agreement, which by their nature would continue beyond the termination, cancellation or expiration of this Agreement, shall survive termination, cancellation, or expiration of this Agreement.
g. Except for payment defaults, neither party shall be considered in default in performance of its obligations hereunder if performance of such obligations is prevented or delayed by force majeure or any cause beyond its reasonable control, including without limitation labor disputes, strikes, lockouts, shortages of or inability to obtain labor, energy, raw materials or supplies, utility or transmission failures, war, riot, or governmental action not the fault of the non performing party.
h. This License Agreement shall constitute the entire agreement between the parties regarding the License and the OSHAadvisor Software and supersedes all proposals and prior discussions and writings between the parties with respect thereto. The parties agree that this License Agreement cannot be altered, amended or modified, except in writing that is signed by an authorized representative of both parties or as set forth in Section 18 below. It is expressly agreed that the terms of any purchase order or other ordering document shall be without force and effect.
i. Subscriber acknowledges that a breach or threatened breach by Subscriber of any of these Terms in any respect will be material and will result in substantial and irreparable injury to OSHAadvisor. In the event of a breach or threatened breach by Subscriber, Subscriber agrees that OSHAadvisor will be entitled to an injunction restraining Subscriber therefrom. This provision shall not be construed as prohibiting OSHAadvisor from pursuing any other available remedies for such breach or threatened breach, including the recovery of damages from Subscriber.
j. If the Subscriber is a company or a government entity, the person who clicks the ‘I Accept’ button on behalf of the Subscriber warrants and represents that he or she has the authority to act on behalf of and bind the Subscriber.
k. Neither party will be deemed to have waived any of its rights under this License Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver or breach of this License Agreement will constitute a waiver of any other breach of this License Agreement.
Subscriber will not assign or otherwise transfer this License Agreement or any of Subscriber’s rights and obligations under this License Agreement without OSHAadvisor’s prior written consent. Any assignment or transfer in violation of this Section 17 will be void. OSHAadvisor may assign this License Agreement without Subscriber’s consent (a) in connection with a merger, acquisition or sale of all or substantially all of OSHAadvisor’s assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for OSHAadvisor as a party to this License Agreement and OSHAadvisor is fully released from all of its obligations and duties to perform under this License Agreement. Subject to the foregoing, this License Agreement will be binding upon, and inure to the benefit of the parties and their respective permitted successor and assigns.
18. modifications to license agreement
19. Applicable Law; Jurisdiction; Venue
The OSHAadvisor Software is controlled by OSHAadvisor from within the State of New York, although it may be accessed and used throughout the world. By accessing or using the OSHAadvisor Software, Subscriber and OSHAadvisor each agree that the substantive laws of the State of New York will govern with respect to all matters relating to or arising from this License Agreement, or the use (or inability to use) the OSHAadvisor Software, and that such laws will apply without regard to principles of conflict of laws. Subscriber and OSHAadvisor agree and hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in the State of New York and the County of Monroe with respect to such matters. Regardless of any statute or law to the contrary, any claim or cause of action that the Subscriber may have arising out of or related to the OSHAadvisor Software must be filed or otherwise commenced by the Subscriber within one (1) year after such claim or cause of action arose or be forever barred.