Subscription Services Agreement
This document constitutes a legally binding contract between you (the “Customer”) and Global Safety Management, Inc., a Delaware corporation (“GSM”). These terms and all materials referred or linked to herein (the “Agreement”) set out your rights and responsibilities and govern your use of the selected subscription services provided by GSM, including SDS Manager, SDS Publisher and SDS Translator, and various professional services (collectively, the “Services”) . By using any of our Services, or even browsing our website, you are agreeing to be bound by these terms. If you do not agree with these terms, you may not use our Subscription Services or browse our website.
We may periodically update these terms. If changes to these terms are material we will notify you of the changes by posting the changes through the Services. You are responsible for reviewing any changes. Your use of the Services or the website following the changes constitutes your acceptance of the updated terms.
Scope of Services
Services Generally. The Services include those products or services that GSM provides to you from time to time pursuant to one or more sales orders, proposals or quotes (each a “Sales Agreement”). The Services generally are designed for the creation, distribution, recording, retention, accessing, translating and managing safety documents and labels (“SDS”), and include developed internet pages (“Service Pages”) displaying the SDS sheets provided by Customer to GSM for loading onto the GSM System, created by GSM or obtained from manufacturer on behalf of customer (“Customer SDSs”), as well as pages which assist in managing SDS forms per location, chemical risk potential, and other factors (the “Management Pages”). The major characteristics of the content, operations, technical specifications, use and capacity of the Services are specified in the applicable Sales Agreement (the “Specifications”).
License Grant. GSM hereby grants to Customer a limited, non-exclusive and non-transferable license to use the Services indicated on the applicable Sales Agreement, subject to any limitations contained therein and the terms of this Agreement, solely for Customer’s internal business purposes; provided that, to the extent specified on the applicable Sales Agreement and subject to the terms of this Agreement, Customer may use SDS Publisher for commercial use.
Permitted Customer Users. Only current employees, representatives, officers, directors, managers, consultants or contractors of Customer shall be authorized to access the Services on Customer’s behalf (each, a “Permitted Customer User” or “PCU”). Customer may also demonstrate the access and functionality of the Services to any regulatory personnel inquiring about Customer’s compliance with SDS maintenance and accessibility requirements and other applicable laws.
Third Parties. We may from time to time in our discretion engage third parties (“Subcontractors”) to perform aspects of the Services, and the Services may include Customer’s or any PCU’s use of third party materials, software, websites or information that are not proprietary to GSM (collectively, “Third Party Materials”).
Changes. We reserve the right, in our sole discretion, to make any changes to the Services that we deem necessary or useful to maintain or enhance our services or to comply with applicable law or government regulations, including by adding or deleting functions and features. We will not make changes to the Services that materially reduce the functionality of the Services.
Other Rights. Other than the license granted herein, all right, title and interest in and to the Services, the Service Pages, the other GSM Materials (as defined below) and the Third Party Materials, including the intellectual property or similar rights embodied therein, are and will remain with, and are expressly reserved by, GSM and the respective rights holders in the Third Party Materials.
Limitations and Restrictions on Use of the Services
Customer and its PCUs are specifically prohibited from:
- providing a link or access to the Service Pages or Management Pages to Customer’s external clients, unless as specifically agreed to in this Agreement or the applicable Order Form;
- decompiling, reverse engineering, disassembling or creating derivative works from the Services;
- removing or obscuring any proprietary notices including, but not limited to, any and all copyright, trademark and patent designations contained in the Services;
- uploading, posting, e-mailing, transmitting, publishing, re-publishing, distributing, displaying or otherwise making the Service Pages or Management Pages available to any person other than a PCU;
- using the Service Pages or Management Pages as a portion of services or products which Customer sells, licenses, leases or otherwise provides to others, other than as specifically stated in the applicable Sales Agreement;
- downloading the SDSs, Service Page images or Management Page images or content to any system other than the GSM System, except as specifically provided in this Agreement or the applicable Order Form;
- in any way sublicensing the Services provided hereunder; or
- removing, modifying, hiding, or otherwise make unreadable or non-viewable any notice, legend, advice, watermark or other designation contained on the Service Pages, Management Pages or otherwise contained in the GSM System.
GSM reserves the right to suspend access to the Services and any PCU who violates the provisions of this Agreement. Customer may provide a link to the GSM System on any portal or intranet system of Customer accessible to any PCU, as specifically agreed to in the applicable Sales Agreement or as otherwise agreed to in writing by GSM, but may not otherwise provide any link or reference to the Services, the Service Pages or the Management Pages.
Customer agrees to immediately cancel the access of any individual who no longer qualifies as a PCU, including any individual who is terminated from employment or independent contractor status with Customer, or otherwise disavows their agreement to abide by Customer’s limitations under this Agreement.
Customer Proprietary Rights
Customer Materials. To the extent applicable with respect to the Services, Customer may provide to GSM or upload to the Service digital and print copies of Customer images, logos and other content (collectively, the “Customer Materials”) that Customer wants GSM to use on the Service Pages and Management Pages. Such copies shall be provided in commercially reasonable media and format as requested by GSM or its Subcontractors. Customer grants to GSM and its Subcontractors a royalty-free, limited license to use, reproduce and display the Customer Designs only for the purposes of fulfilling GSM’s obligations under this Agreement. To the extent Customer Materials constitute trade secrets or confidential information of Customer, Customer must notify GSM prior to providing or uploading such Customer Materials. Subject to the safeguard standards stated below, GSM will not disclose or make available to other customers or other third parties such Customer Materials that Customer has specifically identified in writing as being for private use only. You hereby grant GSM a nonexclusive, royalty-free, perpetual, irrevocable, transferable right and license to use all Customer Materials that Customer uploads or provides to GSM for public use and to incorporate such Customer Materials in other works and services.
Safeguards. We will maintain commercially appropriate administrative, physical, and technical safeguards to protect Customer Materials.
Copyright Infringement. The unauthorized submission or distribution of copyrighted materials is illegal and could subject Customer to liability or criminal prosecution. Customer represents to GSM that none of the Customer Materials infringe or otherwise violate any copyrights or other intellectual property rights of any third party. In compliance with the Digital Millennium Copyright Act, Customer and other persons can report infringement claims to Legal@GSMSDS.com.
Customer Trademarks. During and following the Subscription Term, you give us permission to use your name and brand in connection with the Services and for references, case studies, website & marketing collateral materials, including a non-exclusive limited license to use your trademarks in connection therewith.
Fees and Payment Terms.
Subscription Fees. You will pay GSM the amounts set forth in any Sales Agreement for the Services. All fees referenced in this paragraph constitute “Subscription Fees.”
Manner of Payment. Unless otherwise approved by GSM, all payments due under this Agreement shall be paid in US dollars thirty (30) calendar days from delivery of GSM’s invoice. Any payment not received within thirty (30) days GSM may impose a late payment charge equal to 1.5% per month of the unpaid balance. If you in good faith dispute any invoice submitted by us, you will timely pay the undisputed portion and at the same time provide written notice to us of the disputed items and the details relating to the dispute. Upon receipt of such notice, the parties will work together in good faith to resolve the dispute in a prompt and reasonably acceptable manner. If the dispute is not resolved within thirty (30) thirty days of receipt of the written notice of dispute, the Agreement may be terminated by GSM or GSM may suspend access to the Services without incurring any resulting obligation or liability. Notwithstanding the foregoing, nothing herein will be deemed a waiver of our right to sue for the payment of the disputed amounts if a resolution is not met.
Taxes. All Subscription Fees and other amounts payable by you under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all sales, use or excise taxes due or levied under this Agreement related to your use of the Services.
Additional Fees. Customer will pay for any services performed or products provided, at Customer’s request, that are beyond the scope of the Services described in the applicable Order Form at GSM’s then-current rates.
Subscription Term and Termination
Initial Subscription Term. The initial subscription term shall commence on the effective date of your subscription and expire at the end of the period stated on your Sales Agreement or otherwise selected through our online subscription process (the “Initial Subscription Term”), unless terminated in accordance with this Agreement.
Renewal Subscription Term. Unless either party gives the other written notice that it does not intend to renew the Services, this Agreement will automatically renew for successive one year subscription terms (each a “Renewal Subscription Term” and together with the Initial Subscription Term, the “Subscription Term”). Written notice of non-renewal must be sent no more than sixty (60) days and no less than thirty (30) days in advance of the end of the Subscription Term. Any Renewal Subscription Term will be on the current terms and conditions of this Agreement.
Termination for Cause. Either party may terminate this Agreement, effective on written notice to the other party, if (1) the other party materially breaches this Agreement, and such breach (i) is incapable of cure or (ii) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; (2) the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law or regulation; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
Effect of Expiration or Termination. Upon any expiration or termination of this Agreement you will immediately stop all use of the Services. Unless you terminate for cause, you will promptly pay all previously-accrued but not yet paid Subscription Fees, including Subscription Fees for each month remaining in the Subscription Term. Sections of this Agreement that by their nature or expressly survive will remain in effect following expiration or termination of this Agreement.
Confidential Information. “Confidential Information” means information provided by you or us (the “Disclosing Party”) to the other (the “Receiving Party”) that is designated as confidential. Confidential Information does not include information that the Receiving Party can demonstrate was rightfully known to the Receiving Party without restriction prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement, was or becomes generally known by the public other than by noncompliance with this Agreement, was or is received by the Receiving Party on a non-confidential basis from a third party that is not at the time of such receipt under any obligation to maintain its confidentiality, or the Receiving Party can demonstrate is independently developed by the Receiving Party without reference to or use of any Confidential Information.
Protection of Confidential Information. The Receiving Party will (1) protect the confidentiality of the Confidential Information using the same degree of care that it uses with its own confidential information of similar nature, but with no less than reasonable care, (2) not use any Confidential Information for any purpose outside the scope of this Agreement, (3) not disclose Confidential Information to any third party (except our third party service providers), and (4) limit access to Confidential Information to its employees, contractors, advisors and agents. Upon notice to the Disclosing Party, the Receiving Party may disclose Confidential Information if required to do so under any federal, state, or local law, statute, rule or regulation, subpoena or legal process.
Customer Representations and Warranties. Customer represents and warrants that all Customer Materials each SDS and other item it provides to GSM for loading onto the Services is covered by relevant “fair use” or applicable license to be provided to Customer’s employees and independent contractors through the Services. Customer has independently determined the regulatory requirements with regard to accessibility of SDSs and other chemical safety information, and is not relying upon any express or implied advice of GSM to determine Customer’s industrial hygiene and safety needs. Customer warrants that only PCUs who have agreed to comply with the terms of this Agreement, who are included in the number of Permitted Customer Users agreed to in the applicable Order Form by Customer and GSM, and who otherwise meet GSM’s requirements for Permitted Customer Users will be provided access to the Services by or through Customer. Customer warrants that Customer will diligently protect and cause its PCU to protect passwords, if any, and access to the GSM. Customer represents and warrants that all information provided to GSM in connection with this Agreement is and shall be true, complete and correct to the best of Customer’s knowledge.
GSM Warranty. GSM warrants that the Services shall perform substantially in accordance with GSM’s Specifications and instructions. GSM warranties that the GSM System will be available to Customer during the term at least 95% of the time during each month, excluding Excusable Downtime. “Excusable Downtime” means outages and limitations that may occur (i) for scheduled maintenance, (ii) due to outages of internet and/or the public switched telephone network, or (iii) the occurrence of events outside of GSM’s reasonable control. GSM shall use commercially reasonable information technology security measures in the operation of all Service Pages and Management Pages. The Services include our standard customer support services in accordance with our service support schedule then in effect. Standard customer support services include answers to questions, guidance or other technical assistance needed via telephone Monday through Friday 9am to 5pm Eastern Time excluding US national holidays. We do not promise or guarantee any specific response time. Additional service level requirements or support obligations on the part of GSM may be available to Customer for an additional cost and will be subject to a separate agreement.
Disclaimers of Warranties. Except for the warranties set forth herein, GSM makes no other warranty of any kind, and disclaims any warranties which may otherwise be implied from the terms of this agreement or from the GSM System or any marketing thereof, including but not limited to hardware or software compatibility, security, accuracy or timeliness. There is not warranty that the GSM System will meet Customer’s requirements, that the GSM System and servers upon which it is hosted will be free from computer viruses or security compromising potential. GSM is not serving as legal or regulatory counsel to Customer in any manner, and neither the GSM System, any information provided on the GSM System, any implied functionality of the GSM System, nor any communication between Customer and GSM should be considered to be legal or regulatory advice, or constitute an assurance that use of the GSM System will be sufficient to meet any regulatory, negligence, or other legal standard of care.
Proprietary Rights of GSM
GSM Materials. As between the parties, GSM has and will retain sole control over the Services and the information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, that are provided or used by GSM or any of its representatives or Subcontractors in connection with the Services or otherwise comprise or relate to the Services, other than the Customer Designs (collectively, the “GSM Materials”).
Customer Feedback. You acknowledge and agree that any suggestion, enhancement request, recommendation, correction or other feedback provided by you or your PCUs relating to the Services is non-confidential and that we own all rights to use and incorporate them into the Services or otherwise, without payment or attribution to you.
Indemnification of Customer. GSM agrees to defend Customer at its expense from and against any third party claims that the Services, when used in accordance with the terms of this Agreement, infringe or violate any U.S. intellectual property rights of a third party; provided that Customer promptly notifies GSM of any such claim and GSM controls the defense of such claim. Customer will cooperate in the investigation, settlement and defense of such claims. If any aspect of the Services is, or in GSM’s commercially reasonable opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third-party intellectual property right, GSM shall, at its option, do one of the following: (a) obtain the right for Customer to continue to use the Services materially as contemplated by this Agreement, (b) modify or replace the Services in whole or in part, to seek to make the Services (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, or (c) by written notice to Customer, terminate this Agreement. THIS SECTION SETS FORTH CUSTOMERS’S SOLE REMEDIES AND GSMS SOLE LIABILITY AND OBLIGATION WITH RESPECT TO THE SUBJECT MATTER OF THIS PARAGRAPH. GSM will have no indemnification obligation hereunder with respect to claims based on: (i) the combination of the Services with any other software or hardware, (ii) modifications of the Services not made by GSM, or (iii) Customer’s failure to implement changes recommended by GSM if the infringement would have been avoided in the absence of such combination, modifications or failure to implement recommended changes.
Indemnification of GSM. Customer will indemnify, defend and hold harmless, at your expense, GSM and our representatives and affiliates, and each of our and their respective officers, directors, employees, agents, successors and assigns (each, a “GSM Indemnitee”) from and against any and all losses, liabilities, costs or expenses incurred by such GSM Indemnitee in connection with any claim, suit, action or proceeding by a third party (other than an affiliate of a GSM Indemnitee) that arise out of or relate to any (a) Customer Materials; (b) your non-compliance or breach of this Agreement; (c) your use of Third Party Materials; (d) any violation of laws or regulations; or (e) unauthorized use of the Services by you, any Authorized User, or any third party using your account information.
Disclaimers of Warranties; Limitation of Liability
Exclusions. To the maximum extent permitted under the law, the Uniform Commercial Code and the Uniform Computer Transaction Act, and the enacted versions of those uniform statutes, shall not apply to this Agreement.
Disclaimer of Warranties. THE SERVICES AND GSM MATERIALS ARE PROVIDED “AS IS” AND GSM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHER, AND GSM SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, GSM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR GSM MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF MALICIOUS OR HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CUSTOMER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL FEDERAL, STATE, AND LOCAL LAWS, REGULATIONS, RULES, ORDINANCES AND POLICIES (INCLUDING BUT NOT LIMITED TO ENVIRONMENTAL AND OSHA REQUIREMENTS AND TO THE EXTENT APPLICABLE THE SPECIFIC REQUIREMENT THAT ACCESS TO CERTAIN SDS BE MAINTAINED ON CUSTOMER’S PREMISES). TO THE EXTENT THAT CUSTOMER SELECTS IP RESTRICTIONS IN CONNECTION WITH THE SERVICES, UNDER NO CIRCUMSTANCES SHALL GSM BE RESPONSIBLE FOR ANY INABILITY TO ACCESS ANY SDS, REGARDLESS OF WHETHER OR NOT GSM BREACHES ITS OBLIGATIONS UNDER THIS AGREEMENT. GSM ASSUMES NO RESPONSIBILITY FOR ANY RESULT OR CONSEQUENCE RELATED DIRECTLY OR INDIRECTLY TO ANY ACTION OR INACTION TAKEN BY CUSTOMER BASED ON THE SERVICES.
Exclusion of Damages. IN NO EVENT WILL GSM OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY (A) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (B) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SUBSCRIPTION SERVICES, (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Limitation of Liability. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF GSM AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS AND SUPPLIERS UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE AGGREGATE FEES GSM HAS RECEIVED FROM CUSTOMER DURING THE TWELVE (12) MONTHS PRECEDING THE CIRCUMSTANCES GIVING RISE TO THE LIABILITY. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
Basis of Bargain. The provisions herein are all fundamental and specific requirements that form the basis of the bargain between Customer and GSM and GSM would not make the Services available to Customer on the terms set forth herein if not for these provisions.
Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture or other form of joint enterprise, employment or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
Notices. Notices will be sent to your contact address most recently provided by you to us in connection with your subscription account information. We may give notices to you by email or telephone. You are required to keep your contact information current. Notice to us should be sent to: Legal@GSMSDS.com. Notices will be deemed effectively given when actually received.
Governing Law; Venue. This Agreement shall be interpreted under the laws of the State of Florida exclusive of conflicts of laws provisions, and the parties hereto waive any right to a trial by jury with regard to their business relationship set forth in this Agreement, preferring a bench trial in the event they can not amicably work out their differences. Any legal suit, action or proceeding arising out of or related to this Agreement or the licenses granted hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Florida in each case located in the city of Tampa and County of Hillsborough, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
Force Majeure. Notwithstanding anything to the contrary in this Agreement, neither party shall be liable for any failure or delay in its performance under this Agreement (other than its obligation to make a payment) due to any cause beyond its reasonable control, including (without limitation) acts of God, earthquake, flood, war, terrorism, embargo, riot, sabotage, labor shortage or dispute, governmental act or failure of the Internet.
Amendment and Modification; Waiver. GSM may update and change any part or all of these terms, including the fees and charges associated with the use of the Services (but, your fees and charges won’t change during the Subscription Term except as otherwise expressly provided). If we update or change these terms, updated terms will be posted on our website. The updated Agreement will become effective and binding on the next business day after it is posted. When we change these terms, the “Last Modified” date above will be updated to reflect the date of the most recent version. We encourage you to review this Agreement periodically. If you do not agree with a modification to the Customer Terms of Service, you must notify us in writing within thirty (30) days after receiving notice of modification. If you give us this notice, your subscription will continue to be governed by the terms and conditions of the Agreement prior to modification for the remainder of your current term. Upon renewal, the Agreement published by us on our website will apply. No delay in exercising any right or remedy or failure to object will be a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be a waiver of any right or remedy on any future occasion.
No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective permitted successors and assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.