2. Access and Use.
A. Grant of Rights. Subject to the terms of the Agreement, Risk Alive grants Subscriber and its Affiliates a limited, non-exclusive, personal, non-transferable, non-sub-licensable and fully revocable right to access and use the Services for the Term.
B. License to Host Subscriber Content. Subscriber and its Affiliates hereby grant Risk Alive a non-exclusive, revocable, worldwide, transferrable (subject to Section 16A Assignment) right and license to host, copy, display and use Subscriber Content as may be necessary for Risk Alive to fulfill the rights it has granted Subscriber and its Affiliates under Section 2A. Subject to the limited license granted Risk Alive to Subscriber Content under Sections 2B and 2C, all other rights, title and interests in Subscriber Content are reserved unto Subscriber.
C. Data Sets and Analytics Learnings. Notwithstanding anything to the contrary in the Agreement, Risk Alive may use the skills and learnings acquired during the delivery of the Services for the performance of similar services for third parties provided that Risk Alive remains compliant with Article 5 (Confidentiality). In addition and notwithstanding anything to the contrary in the Agreement, Subscriber and its Affiliates hereby grant Risk Alive a non-exclusive, worldwide, perpetual, irrevocable, sub-licensable and transferrable (subject to Section 15A Assignment) right and license to Risk Alive to exploit the Data Sets as modified to be made incapable of being identified as pertaining to Subscriber or its Affiliates for the performance of and inclusion in such services.
D. Feedback. Notwithstanding the terms of Article 5 (Confidentiality), Subscriber and its Affiliates hereby grant Risk Alive a non-exclusive, worldwide, perpetual, irrevocable, fee and royalty-free, fully transferrable and sub-licensable right and license to exploit all Feedback.
E. Credentials. Risk Alive will contact Subscriber to coordinate the activation of Subscriber’s access to the Services and the creation of Subscriber’s Administrative Credentials and Access Credentials. Subscriber, its affiliates and their respective Authorized Users will take all steps to ensure the protection of the confidentiality of all Administrative Credentials and Access Credentials, and for restricting access to computers, devices and systems. Subscriber, its Affiliates and their respective Authorized Users will not disclose or share Administrative Credentials and Access Credentials or allow any other person or entity to access Subscriber’s, its Affiliates and their respective Authorized Users account(s). Subscriber and its Affiliates agrees to notify Risk Alive immediately if Subscriber or its Affiliates suspect or becomes aware of any unauthorized use of Subscriber’s or its Affiliates’ Administrative Credentials, Access Credentials or account(s), or any other security breach involving Subscriber or its Affiliates’ account(s) or the Site at firstname.lastname@example.org and phone +1 (877) 264-9637. Risk Alive is not responsible for any unauthorized access of Administrative Credentials, Access Credentials or account(s) even if Risk Alive has been advised of such. Subscriber and its Affiliates are responsible for all activities that occur under their respective Administrative Credentials, Access Credentials and account(s), whether or not such activities have been authorized by Subscriber or its Affiliates.
F. Modifications. Subscriber acknowledges and agrees that Risk Alive may Modify the Site and Services from time to time provided that the Modifications do not materially degrade the Services.
3. Fees and Payment.
A. Pricing adjustments to account for changes in the Services. Subscriber may, at any time during the Term purchase additional Modules or services, or both, by entering into an Agreement for the same at Risk Alive’s then current pricing.
B. Set-off and Withholding. Subscriber and its Affiliates agree that they will pay the full amount of any Fees due to Risk Alive under the Agreement and will not set-off, counterclaim or otherwise withhold any amount due to Risk Alive for any reason.
C. Taxes. All quoted Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, excise, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Subscriber and its Affiliates, as applicable, are responsible for paying all Taxes associated with all Fees due under the Agreement. If Risk Alive is legally obligated to pay or collect Taxes for which Subscriber or its Affiliates are responsible under this Section 3C, then Risk Alive will include and collect such Taxes from Subscriber or its Affiliates, as applicable, unless Subscriber or its Affiliates, as applicable, provide Risk Alive with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Risk Alive is solely responsible for all taxes assessable against Risk Alive based on its revenues, assets (including real property) and personnel.
4. Risk Alive Intellectual Property.
Title and full ownership of the Risk Alive IP will at all times remain with Risk Alive. Except for the limited rights expressly granted under the Agreement, Risk Alive reserves all rights, title and interests in and to the Risk Alive IP and nothing in the Agreement grants, by implication, estoppel, or otherwise, to Subscriber, its Affiliates or any third party any intellectual property rights or other right, title or interest in or to the Risk Alive IP.
5. Confidentiality. Subject to Section 2C, Risk Alive agrees that it will not at any time during or after the termination of the Agreement, reveal, divulge, or otherwise make known to any third party any of Subscriber Content except for any of Subscriber Content that becomes part of the public domain through no breach of the Agreement by Risk Alive.
If Risk Alive is compelled by law to disclose any of Subscriber Content, Risk Alive agrees that it will, to the extent practicable and legally permitted, provide Subscriber with prompt written notice of such request including identification of the particular portion of Subscriber Content to be disclosed and a copy of the order or written requirement from the applicable court or government authority so that Subscriber may, at Subscriber’s sole cost and expense, seek a protective order or other appropriate remedy or waive compliance with the provisions of the Agreement. If a protective order or other remedy is not obtained, or Subscriber waives compliance with the provisions of the Agreement, Risk Alive will furnish only that portion of the Subscriber Content that is legally required.
6. Subscriber Responsibilities.
A. Responsibilities. Subscriber and its Affiliates will: (a) be responsible for their respective Authorized Users’ compliance with the Agreement; (b) be responsible for the legality, completeness, accuracy, quality and suitability of all of Subscriber Content (c) be responsible for reading and understanding all correspondence from Risk Alive regarding the conditioning it performs on any Data Sets prior to review of the Services performed with the Data Sets; (d) use the Services only in accordance with the Agreement and applicable laws; and (e) comply with the Agreement in the performance of their respective obligations hereunder.
B. Usage Restrictions. Subscriber and its Affiliates will not (a) sell, resell, license, sublicense, distribute, make available, rent or lease access to and use of the Site or Services, or include access to or use of the Site or Services in a service bureau or outsourcing offering, (b) use the Site or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy, personality or intellectual property rights, (c) upload to, or transmit from, the Site or Services any data, file, software, or link that contains or redirects to a harmful code or other harmful component, (d) interfere with or disrupt the integrity or performance of the Site or Services or any third party use of the Site or Services, (e) attempt to gain unauthorized access to the Site or Services or related systems or networks, (f) permit direct or indirect access to or use of the Site or Services in a way that circumvents access or use restrictions to Risk Alive IP except as permitted under the Agreement, (g) modify, copy, or create derivative works based on the Site or Services or any part, feature, function or user interface thereof, (h) frame or mirror any part of the Site or Services other than framing on Subscriber own intranets or otherwise for Subscriber own internal business purposes, or (i) reverse engineer, decompile, hack, disable, or disassemble, the Site or Services or any part thereof or any data contained, (j) do anything that will reveal or generate the source code of the Site or Services, (k) grant access or disclose or share access or Administrative Credentials or Access Credentials with any third party, or (l) access the Site or Services to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Site or Services, (3) copy any ideas, features, functions, or graphics of the Site or Services, or (4) determine whether the Services is within the scope of any patent, or authorize, permit or encourage any third party to do any of the above. Any use of the Site or Services by Subscriber or its Affiliates in breach of the Agreement that, in Risk Alive’s judgment (acting in its sole discretion), threatens the security, integrity or availability of the Site or Services may result in Risk Alive immediately and without notice suspending access to the Site and Services.
7. Representations and Warranties.
A. Risk Alive’s Representations and Warranties. Risk Alive warrants that:
1. The Services will substantially conform to the Documentation;
2. The Documentation will contain sufficient information and explanations to enable Authorized Users to access and use the Services; and,
3. It has used and will continue to use commercially reasonable efforts to prevent the occurrence of and eliminate Malicious Code from the Site and Services and where any such Malicious Code is found, will use commercially reasonable efforts to remedy the same and to reduce interruptions to the Subscriber and its Affiliates that may result from such Malicious Code.
B. Subscriber’s Representations and Warranties. Subscriber and its Affiliates represent and warrant that:
1. Subscriber and its Affiliates will not upload to, or transmit from, the Site any data, file, software, or link that contains or redirects to Malicious Code;
2. Subscriber and its Affiliates will not reverse engineer, decompile, hack, disable, interfere with, disassemble, copy, or disrupt the integrity or the performance of the Site or Services, any third party use of the Site or Services, or any information or data contained therein;
3. Subscriber and its Affiliates will not do anything that will reveal or generate the source code of the Site or Services;
4. Subscriber and its Affiliates will not attempt to gain unauthorized access to the Site or Services, or their related systems or networks;
5. Subscriber and its Affiliates will not grant access or disclose or share access to their Administrative Credentials or Access Credentials with any third party;
6. Subscriber and its Affiliates will not authorize, permit, or encourage any third party to do any of the above;
7. Subscriber, its Affiliates and their respective Authorized Users will perform their obligations under the Agreement in conformity with the Agreement and applicable law;
8. Subscriber and its Affiliates will apply best practice in the management and security (including Malicious Code protection) of its internal systems and networks and internet, intranet and extranet sites from which the Services are to be accessed; and,
9. The Subscriber Data will not infringe any copyright, trademark, patent right, privacy right or misappropriate any trade secret of any third-party.
8. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY SET OUT IN SECTION 7A ABOVE, THE SITE AND SERVICES ARE MADE AVAILABLE ON AN “AS-IS”, “AS AVAILABLE”, AND “WHERE AS” BASIS. RISK ALIVE DISCLAIMS ALL OTHER WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, ACCURACY, QUALITY AND NON-INFRINGEMENT. WITHOUT LIMITATION, RISK ALIVE DOES NOT WARRANT THAT:
- THE SERVICES ARE SUITABLE FOR OR WILL MEET SUBSCRIBER’S OR ITS AFFILIATES’ REQUIREMENTS;
B. THE SERVICES ARE FREE OF DEFECTS, HARMFUL CODE, VIRUSES OR MALWARE;
C. THE SERVICES WILL BE FREE FROM INTERRUPTION;
D. THE SERVICES WILL BE ERROR-FREE; OR
E. ALL DEFECTS IN THE SERVICES WILL BE CORRECTED.
THE EXPRESS TERMS HEREOF CONTROL AND SUPERSEDE ANY COURSE OF PERFORMANCE AND/OR USAGE OF THE TRADE INCONSISTENT WITH ANY OF THE TERMS HEREOF.
9. Advisory Capacity. Subscriber and its Affiliates acknowledge and accept that the use of and reliance upon the output of the Services are subject to professional judgment, and the output of the Services is provided to Subscriber and its Affiliates in an advisory capacity only, for Subscriber and its Affiliates’ consideration and sole decision to implement.
10. Limitation of Liability. Subscriber and its Affiliates acknowledge and agree that (a) Risk Alive is not an insurer, and, (b) data processing and those other functions to be performed by Risk Alive under the Agreement entail the risk of human and machine error, omissions, delays and losses (including without limitation inadvertent loss or misstatement of data which may give rise to damages). Accordingly, Subscriber, its Affiliates and Risk Alive agree that, except for instances in which Risk Alive, its Affiliates, and their respective personnel commit an act of wilful misconduct, Risk Alive and its Affiliates will not be liable to Subscriber or its Affiliates for any errors, omissions, delays or other mishaps directly or indirectly involving the Site or the Services, or for any Claims arising therefrom. Risk Alive strives to ensure the security of the Data Sets, however, we cannot guarantee that unauthorized third parties will not circumvent our security measures.
RISK ALIVE IS NOT RESPONSIBLE FOR SUBSCRIBER’S AND ITS AFFILIATES’ USE OF THE SITE AND SERVICES. SUBSCRIBER AND ITS AFFILIATES ACCEPT THAT THEIR ACCESS TO AND USE OF THE SITE AND SERVICES AND THEIR RELIANCE UPON ANY OUTPUT THEREFROM, WILL BE AT THEIR SOLE RISK AND EXPENSE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, SUBSCRIBER ON ITS OWN BEHALF AND ON BEHALF OF ALL AFFILIATES, SUCCESSORS AND ASSIGNS (THE “RELEASORS”), HEREBY RELEASES RISK ALIVE, ITS AFFILIATES AND EACH OF THEIR PAST AND PRESENT DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES FROM ANY AND ALL CLAIMS AND LOSSES ANY OF THE RELEASORS HAVE OR MAY HAVE IN THE FUTURE, OF ANY NATURE AND REGARDLESS OF THE THEORY OF LIABILITY (WHETHER BASED IN CONTRACT, TORT, STRICT LIABILITY OR OTHER), ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE AGREEMENT OR SUBSCRIBER’S OR ITS AFFILIATES’ USE OR INABILITY TO USE THE SERVICES, EVEN IF RISK ALIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES, INCLUDING IN RESPECT OF PROPERTY DAMAGE, PERSONAL OR BODILY INJURY AND DEATH.
THE SERVICES PROVIDED BY RISK ALIVE UNDER THE AGREEMENT DO NOT INCLUDE ANY ASSUMPTION OF RISK OR THE POSSIBILITY OF SUCH POTENTIAL LOSSES. SUBSCRIBER AND ITS AFFILIATES FURTHER ACKNOWLEDGE THAT (A) SUBSCRIBER AND ITS AFFILIATES’ ACCESS TO AND USE OF THE SERVICES UNDER THE AGREEMENT IS MADE POSSIBLE ONLY BY THE DISCLAIMER OF WARRANTIES AND LIMITATION OF LIABILITY SPECIFIED HEREIN AND (B) SUBSTANTIAL FEES WOULD BE PAYABLE BY SUBSCRIBER AND ITS AFFILIATES IF ANY OF THESE PROVISIONS WERE UNENFORCEABLE. SUBSCRIBER, ITS AFFILIATES AND RISK ALIVE ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS ARTICLE 10 IS TO ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN SUBSCRIBER, ITS AFFILIATES AND RISK ALIVE AND SUBSCRIBER, ITS AFFILIATES AND RISK ALIVE HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THE AGREEMENT.
THIS LIMITATION UPON CLAIMS AND LOSSES WILL APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
NOTWITHSTANDING THE ABOVE, IF RISK ALIVE IS FOUND LEGALLY RESPONSIBLE TO SUBSCRIBER OR ANY OF ITS AFFILIATES FOR ANY LOSSES SUBSCRIBER OR ANY OF ITS AFFILIATES MAY HAVE SUFFERED ARISING IN CONNECTION WITH SUBSCRIBER’S OR ITS AFFILIATES’ ACCESS TO AND USE OF, OR INABILITY TO ACCESS OR USE THE SERVICES, THEN RISK ALIVE’S LIABILITY TO SUBSCRIBER AND ITS AFFILIATES, AS APPLICABLE, WILL BE NO MORE THAN ONE HUNDRED (100%) PERCENT OF THE FEES PAID BY SUBSCRIBER OR ITS AFFILIATES, AS APPLICABLE, IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY.
A. INDEMNIFICATION BY SUBSCRIBER. SUBSCRIBER OR ITS AFFILIATES, AS APPLICABLE, AGREE TO DEFEND, INDEMNIFY AND HOLD RISK ALIVE, ITS AFFILIATES AND EACH OF THEIR PAST AND PRESENT DIRECTORS, OFFICERS, EMPLOYEES, CONTRACTORS, AGENTS AND REPRESENTATIVES (THE “INDEMNITEES”) HARMLESS FROM AND AGAINST ALL CLAIMS OF THIRD PARTIES BROUGHT AGAINST, AND ALL LOSSES, OF WHATEVER NATURE INCURRED OR SUFFERED BY, ANY OF THE INDEMNITEES AS A RESULT OF OR ARISING OUT OF OR IN ANY WAY CONNECTED TO SUBSCRIBER’S, ITS AFFILIATES AND THEIR RESPECTIVE PERSONNELS’ ACTS OR OMISSIONS, INCLUDING BUT NOT LIMITED TO, USE OF THE SERVICES, RELIANCE ON THE SERVICES AND ANY OUTPUT THEREFROM, OR RELATING TO ANY FAILURE BY SUBSCRIBER, ITS AFFILIATES OR THEIR RESPECTIVE PERSONNEL, TO COMPLY WITH ANY APPLICABLE LAW OR ANY TERMS OF THE AGREEMENT.
Risk Alive reserves the right, at its own expense, to assume exclusive defence and control of any matter subject to indemnification by Subscriber or any of its Affiliates. Subscriber and its Affiliates agree to provide all assistance as Risk Alive may reasonably request in defence of any indemnified Claim.
B. Indemnification by Risk Alive. Risk Alive will defend and hold Subscriber and its Affiliates harmless against any Claims made or brought against Subscriber or any of its Affiliates (the “Indemnified Parties”), by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the Intellectual Property Rights of a third party, and will pay for any settlement and any damages finally awarded against any of the Indemnified Parties; provided that, the applicable Indemnified Parties promptly (i) gives Risk Alive written notice of the Claim; (ii) gives Risk Alive sole control of the defense and settlement of the Claim (provided that Risk Alive may not settle any Claim unless the settlement unconditionally releases the Indemnified Parties of all liability and does not include a statement as to or admission of fault, culpability, or failure to act by or on behalf of any of the Indemnified Parties); and (iii) provides to Risk Alive all reasonable assistance, at Risk Alive’s expense.
C. Exclusions from Obligations. Risk Alive will have no obligation under this Article 11 for any infringement or misappropriation to the extent that it arises out of or is based upon use of the Services not authorized in writing by Risk Alive in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; use of the Services for purposes not intended or outside the scope of the rights granted in Section 2A above; Subscriber’s or its Affiliates’ failure to use the Services in accordance with instructions provided by Risk Alive, if the infringement or misappropriation would not have occurred but for such failure; or any modification of the Services not made or authorized in writing by Risk Alive where such infringement or misappropriation would not have occurred absent such modification.
D. Mitigation of Infringement Action. If Subscriber’s or its Affiliates’ use of the Services is, or in Risk Alive’s reasonable opinion is likely to become, enjoined or materially diminished as a result of a proceeding arising under this Article 11, then Risk Alive may, at its sole discretion, either: (i) procure the continuing right of Subscriber and its Affiliates to use the Services; (ii) replace or modify the Services in a functionally equivalent manner so that it no longer infringes; or (iii) if, despite its commercially reasonable efforts, Risk Alive is unable to do either (i) or (ii), Risk Alive may terminate Subscriber’s and its Affiliates’ rights with respect to the Services and refund to Subscriber and its Affiliates, as applicable, all unused Fees pre-paid by Subscriber and its Affiliates with respect to the Services.
A. Breach and Failure to Cure. Either party may terminate the Agreement with immediate effect upon written notice to the other party in the case of a breach by the other party of its material obligations under the Agreement, provided that the breach is not cured within twenty (20) days of written notification by the non-breaching party to the breaching party setting out the particulars of the breach. If the breach is not susceptible to cure then the non-breaching party may terminate the Agreement with immediate effect upon written notice to the other party.
B. Termination for Insolvency. Either party may terminate the Agreement with immediate effect upon written notice to the other party, if: (a) the other party is subject to proceedings in bankruptcy, or insolvency, whether voluntary or involuntary, (b) a receiver is appointed in respect of all or a substantial portion of the other party’s assets; or (c) the other party assigns its property to its creditors or generally becomes unable to pay its debts as they become due.
C. Effect of Termination. The expiration or termination of the Agreement will not affect or prejudice any rights or obligations which have accrued or arisen under the Agreement prior to the date of expiration or termination, including any rights or obligations which have accrued or arisen in respect of a breach or failure to perform, and such rights and obligations will survive the expiration or termination of the Agreement.
D. Access. Upon the expiry or termination of the Agreement, the rights and licenses in Sections 2A and 2B will automatically terminate.
13. Data Portability and Deletion. At any time before the termination of the Agreement and upon receipt of written notice from Subscriber and its Affiliates, Risk Alive will make Subscriber Content available for export or download in its native format without charge. After expiry or the effective date of termination of the Agreement Risk Alive will have no obligation to Subscriber and its Affiliates to retain or provide Subscriber and its Affiliates with a copy of any of Subscriber Content and can thereafter delete or destroy all copies of Subscriber Content in Risk Alive’s systems or otherwise in Risk Alive’s possession or control without any liability to Subscriber and its Affiliates whatsoever.
14. Future Functionality. Subscriber and its Affiliates hereby acknowledge and agree that their respective Subscriptions are contingent only on the delivery of the Services expressly set out in the Order and not on any other future functionality or features, services offerings, displays, wire models, demonstrations, prototypes, mock-ups or on any oral or written representations made by Risk Alive whatsoever.
15. General Terms.
A. Assignment. Subscriber and its Affiliates may not assign any of their rights or obligations under the Agreement without the prior written consent of Risk Alive, which consent will not be unreasonably withheld, conditioned or delayed and any attempted assignment contrary to these requirements will be void. Risk Alive may assign the Agreement to any assignee or recipient of all or substantially all of its assets or equity, whether by assignment, sale of assets or stock by merger, reorganization (including consolidation, acquisition, amalgamation, or the like) or other transaction, so long as Risk Alive’s obligations under the Agreement are assumed by such assignee or recipient.
C. No joint venture or agency. Nothing in the Agreement will constitute or create a joint venture, partnership, or any other similar arrangement between Risk Alive and Subscriber or any of its Affiliates. For purposes of delivery of the Services, Subscriber and its Affiliates have engaged Risk Alive as an independent contractor. Neither Subscriber, its Affiliates nor Risk Alive will have the authority to make any statements, representations or commitments of any kind, or take any action, which will be binding on the other, without the prior consent of the party to do so, except as expressly provided for herein.
D. Exclusive Remedies. Except as otherwise expressly set out in the Agreement, the remedies set forth in the Agreement comprise the exclusive remedies available to Subscriber and its Affiliates at law or in equity.
E. Severability: If any term or condition of the Agreement is held void or unenforceable, it will be severed, and every other provision of the Agreement will be enforced as if the void or unenforceable term or condition had never been a part hereof.
F. Governing Law and Forum Selection: The interpretation of the Agreement, all disputes arising thereunder and Subscriber’s and its Affiliates’ legal relationship with Risk Alive will be governed by and construed in accordance with the laws of the Province of Alberta, together with the federal laws of Canada applicable therein, without regard to conflict of laws principles. This Agreement will not be governed by the application of the United Nations Convention on Contracts for the Sale of Goods. Subscriber, its Affiliates and Risk Alive irrevocably and unconditionally agree that the parties will not commence any action, litigation or proceeding of any kind whatsoever against each other that arises from or relates to the Agreement, regardless of legal theory (whether by contract, equity, tort (including negligence), fraud, under statute or other) in any forum other than the courts of the Province of Alberta. Subscriber, its Affiliates and Risk Alive irrevocably and unconditionally accept and submit to the exclusive jurisdiction of the courts of the Province of Alberta and agree to bring any such action, litigation or proceeding only in the courts of the Province of Alberta located in Calgary, Alberta. Subscriber, its Affiliates and Risk Alive agree that a final judgment in any such action, litigation or proceeding is conclusive and may be enforced in other jurisdictions by action on the judgment or in any other manner provided by law.
G. Forum: Subscriber and its Affiliates irrevocably waive any objection based on venue or forum non convenience with respect to any Claim arising under the Agreement or in any way connected to or related to or incidental to the dealings of Subscriber, its Affiliates and Risk Alive in respect of the Agreement or any related transactions, in each case whether now existing or hereafter arising and whether in contract, tort, equity or otherwise.
H. Insurance: Risk Alive will, at its own expense procure and continuously maintain throughout the Term, policies of insurance in the minimum amounts deemed sufficient by Risk Alive to cover its indemnification obligations and other liabilities assumed under this Agreement. A certificate of such insurance will be available upon request.
J. Enurement: The Agreement will be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns.
SCHEDULE “A” DEFINITIONS
A. “Access Credentials” means any user name, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
B. “Administrative Credentials” means any username, identification number, password, license or security key, security token, PIN or other security code, method, technology or device used, alone or in combination, to verify Subscriber’s and its Affiliates’ identity and authorization to set up Access Credentials for Authorized Users.
C. “Affiliate” means with respect to either party, any person that directly or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with that party. For the purposes of this definition, “control” will mean the direct or indirect beneficial ownership of 50% or more of voting securities or interest in an equity.
D. “Authorized User” means any individual to whom Subscriber or its Affiliates grants access authorization to use the Services that is one of Subscriber’s or its Affiliate’s respective personnel.
E. “Claims” means any and all manner of claims, demands, actions, suits or proceedings, including, without limitation, all rights with respect to any and all Losses.
F. “Data Sets” means all data and information associated with one or more processing units and submitted by Subscriber or its Affiliates that is either (a) uploaded to the Site or (b) otherwise provided to Risk Alive for the express purpose of being uploaded to the Site.
G. “Feedback” means Subscriber and its Affiliates’ recommendations, enhancement requests, suggestions, or other feedback on the features or functionality of the Services.
H. “Intellectual Property Rights” means any right or protection existing from time to time in a specific jurisdiction under any patent law, copyright law, moral rights law, trade secret law, database law, trademark law or other similar laws and includes legislation by governmental authorities and judicial decisions under common law or equity, and the right to apply to register such rights.
I. “Losses” means any and all manner of losses, damages, fines, penalties, costs and expenses (including legal fees and expenses on a full indemnity basis), known or unknown, foreseeable or not foreseeable, liquidated or unliquidated, direct or indirect.
J. “Malicious Code” means any virus, worm, trap door, time bomb, Trojan horse or other harmful or malicious code, file, script, agent or program designed to permit unauthorized access to, or to erase or otherwise harm a party’s software, hardware, systems or data.
K. “Modify” or “Modifications” means updates, upgrades, patches, bug fixes, and other minor modifications, and new versions of the Services incorporating such updates, upgrades, patches, bug fixes, and other minor modifications, that are not included in the initial delivery of the Services.
L. “Modules” or “Analytics Modules” means one or more of the following Analytics modules: (a) Critical Top 3; (b) Safeguard Ranking; (c) Recommendation Sequencer; (d) Risk Intelligence Lists; (e) Hazardous Scenario Viewer; (f) Unit Comparison Visualisation; (g) Unit Comparison Analysis; (h) Library Lite; (i) GOST; (j) Report Card; (k) PHA Evergreening; and (l) Library Full; as the Modules may be supplemented or removed by Risk Alive from time to time and as the context may require.
N. “Risk Alive” means Risk Alive Analytics Inc., an Alberta corporation with an office at Suite 300, 926 5th Avenue SW, Calgary, Alberta T2P 0N7.
O. “Risk Alive Content” means all content that is not Subscriber Content.
P. “Risk Alive IP” means the Services, Risk Alive’s trademarks and service marks, the Site and Risk Alive Content, developments, modifications, learning and training materials, and other written or electronic documents and materials produced by Risk Alive, and all intellectual property rights in the foregoing. For the avoidance of doubt, Risk Alive IP includes all know-how, learnings and data described in Section 2C.
Q. “Services” has the meaning assigned to it in the Order.
R. “Site” means Risk Alive’s website at riskalive.com, or any successor website used for the provision of the Services.
S. “Subscriber Content” means any data, information and material whatsoever that Subscriber or its Affiliates submit, create or transfer through use of the Services including but not limited to Data Sets, information, images, screen shots, video, audio or other content that is either (i) uploaded to the Site or (ii) otherwise provided to Risk Alive for the express purpose of being uploaded to the Site.
T. “Subscription” means the right to access Services pursuant to an Order.
U. “Support” has the meaning ascribed to that term in the Order.
V. “Term” has the meaning ascribed to that term in the Order.
W. “Trial” means a Subscription to the Services on a no-fees basis for the purposes of evaluating the Services.