Terms of Service and License for the Guardhat Platform
This Agreement is Guardhat’s Terms of Service and License that governs its relationship among you, the principal on whose behalf you are authorized to act (the “Principal,” with you and the Principal collectively being the “User”), and Guardhat, Inc., a Delaware corporation (“Guardhat”) for Services provided by the Guardhat Platform.
By installing, copying, accessing, or otherwise using any part of the Guardhat Platform and Services, User and its agents agree to and contract with Guardhat under the terms and conditions of this Agreement. If you do not agree to the terms of this Agreement, you are prohibited from any use of the Guardhat Platform and Services. In the event that the Principal (or the entity you represent) and Guardhat enter into a separate written agreement governing use of the Guardhat Platform, that agreement shall control unless otherwise indicated therein.
The Effective Date of this Agreement is that date on which you accept the terms and conditions of this Agreement.
1. Definitions
1.1. “Affiliate” means any: (a) individual who or “Entity” (i.e., any corporation, firm, partnership, proprietorship, or other form of business organization) that in whatever country organized or resident, directly or indirectly, is controlled by, or is under common control with, or controls a party; or (b) Entity in which a party or any Entity in which any individual or Entity recited in subparagraph (a) directly or indirectly has at least a fifty percent ownership or voting rights interest (whether through stock ownership, stock power, voting proxy, or otherwise), or has the maximum ownership interest it is permitted to have in the country where such Entity exists.
1.2. “Authorized User” means an employee, contractor, or authorized agent of User or its Affiliates who is authorized to access or use the Platform in connection with the conduct of User’s use as permitted hereunder.
1.3. “Guardhat Platform” refers to cloud-hosted or on-premise software and “Guardhat app/SIM app” mobile-device software (collectively “Software”) from Guardhat that provides the Services, including the Guardhat SIM offering described here: www.guardhat.com/safety-inspection-manager, and including all accompanying software documentation and instructions, and all software revisions, updates, and upgrades.
1.4 “Services” include but are not limited to monitoring, managing, and/or data analytics processing for connected equipment, workers, and worksites.
2. Term and Termination
2.1 The term of this Agreement shall commence on the Effective Date of this Agreement and continue for the duration that the User has valid authentication credentials for the Guardhat Platform. In addition to its other remedies at law and in equity, Guardhat may terminate this Agreement and the license grants set forth herein at any time if: (i) Guardhat provides thirty (30) days written notice to the User; (ii) User is in material breach of any term or condition hereof or any other agreement with Guardhat; or (iii) if User fails to make timely payment of any service, license, or support fees due to Guardhat and such default is not cured within thirty (30) business days of User’s receipt of written notice of such default.
2.2 In the event of expiration or termination, User shall immediately cease all use of the Guardhat Platform and, within thirty (30) days of such termination or expiration, return, delete, or destroy any software of the Guardhat Platform in User’s possession. User is solely responsible for downloading all appropriate data (including User Data) included in the Guardhat Platform prior to the expiration or termination date. On or after the expiration or termination date, Guardhat may delete all data it holds on behalf of the User without liability of any kind to User.
3. Permitted Use and License
3.1. Guardhat has developed a cloud-based solution, referred to collectively as the Guardhat Platform, which provides Services to User. Guardhat provides User with access to and use of the Services. The Services may be hosted on Guardhat’s servers or third-party servers selected by Guardhat and made available to User by means of the Internet.
3.2. Guardhat hereby grants to User a worldwide, limited, non-exclusive, and non-transferable license to access and use, only within User’s enterprise and only using valid authentication credentials, the Guardhat Platform and Services in accordance with this Agreement. User agrees not to use, or permit any Authorized User to use the Guardhat Platform and Services for any purposes beyond the scope of this Agreement. Without limiting the foregoing, User shall not, nor permit its Authorized Users or others to: (a) resell, sublicense, lease, time-share or otherwise make the Guardhat Platform and Services available to any third party, including but not limited to for third-party training, commercial time-sharing, application service provider or service bureau use; (b) transfer or copy the Guardhat Platform, Services, or any component (i.e., functional software) thereof; (c) modify, adapt or make derivative works of the Guardhat Platform or Services, or reverse engineer the Guardhat Platform or Services (provided that the foregoing shall not be construed to prohibit User from configuring the Guardhat Platform or Services to the extent permitted by the Guardhat Platform’s standard user interface); (d) remove, obscure, or alter Guardhat’s proprietary notices, trademarks, or other proprietary rights notices embodied on or contained in the Guardhat Platform, Services, or the documentation; (e) use the Guardhat Platform and Services in contravention of any federal, state, local, foreign or other applicable law, or rules or regulations of regulatory or administrative organizations; (f) introduce into the Guardhat Platform or Services any virus or other code or routine intended to disrupt or damage the Guardhat Platform, Services, or its content, or collect information about the Guardhat Platform, Services, or its Authorized Users; (g) use the Guardhat Platform or Services to send or store infringing or unlawful material; (h) access the Guardhat Platform or Services for the purpose of building, or assisting others to build, a competitive product or service or copying its features, content or user interface, including without limitation by screen scraping; or (i) access or use the Guardhat Platform or Services by means of any interfacing program, script, automated program, electronic agent or “bot.”
3.3. Unless expressly provided herein, Guardhat retains all rights to all intellectual property embodied in or related to the products and services hereunder, including the Guardhat Platform, except that User Data is owned by User and User grants Guardhat certain rights to use User Data as described in Section 9 and as otherwise specified in this Agreement. No ownership rights in any intellectual property are transferred to User under this Agreement. User disclaims and waives all right, title, and interest in the software of the Guardhat Platform other than the license rights expressly set forth herein. To the extent that User is ever deemed to have any right, title, or interest in the Software, or in any modification or derivative work thereof, User agrees to assign, and hereby assigns the same to Guardhat in accordance with their respective ownership interests, as determined by Guardhat. User shall not sublicense, rent, copy, modify, create derivative works of, reverse engineer, decompile, disassemble or otherwise attempt to gain access to the source code for the Guardhat Platform and Services, or work with any individual or company that seeks to do any such activity.
4. Credentials
4.1. Guardhat will issue unique User IDs and Passwords to enable Authorized Users to use the Services. Each User ID and Password combination is unique, confidential, and intended for use only by a single Authorized User to whom it is assigned. User may modify the Authorized Users from time to time to substitute or delete Authorized Users by using the functionality built into the Services if available. Authorized Users shall safeguard User ID and Password information relating to the Guardhat Platform and Services, and User bears all risk from improper access due to failures of such safeguarding. User is responsible for all activities conducted under the accounts of its Authorized Users and for its Authorized Users’ compliance with this Agreement. User shall be responsible for any and all use of the Guardhat Platform and Services that is made through use of such User IDs and Passwords.
4.2. If User has Administrator Privileges and creates additional Authorized Users, then User assumes all responsibilities and liabilities for activities performed at the Guardhat Platform by those additional Authorized Users. Administrator Privileges for purposes of this section are (i) granted by Guardhat to User through a unique combination of User ID and Password and (ii) enable User to generate additional unique User IDs and Passwords for Authorized Users to access and use the Guardhat Platform and Services.
5. Support
5.1. Guardhat will use commercially reasonable efforts to provide Support Services for the Software to User. In no event, shall Guardhat be obligated to provide Support Services to the User (1) if User is then in breach of a material term of this Agreement, (2) after this Agreement has expired or has been terminated (3) for any time period or use of the Guardhat Platform that is not paid for by the User. User expressly acknowledges that Guardhat does not guarantee a specific response time to requests for Support Services.
5.2. Guardhat shall have no obligation to provide Support Services relating to: (a) products not sold, provided, or approved by Guardhat; (b) third-party products not embedded in the Software, i.e., products sold under a brand name not owned by Guardhat (e.g., hardware, devices, other equipment and certain software “add-ons”); (c) any Software version that has been retired by Guardhat, except upon Guardhat’s election; (d) any Software that is neither the most current nor the immediately preceding version, except upon Guardhat’s election; (e) Software that is not specified or not referenced to in this Agreement.
6. Warranty
6.1. Limited Warranty. Guardhat warrants that: (i) during the term of this Agreement, when used in accordance with Guardhat’s instructions (whether written, posted or however conveyed), the Software will perform substantially in accordance with the Guardhat’s published user documentation; and (ii) all installation services provided by Guardhat hereunder shall will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. User shall promptly notify Guardhat of any warranty claims hereunder.
6.2. EXCEPT FOR SECTION 6.1, Guardhat, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS DISCLAIM AND USER WAIVES ALL OTHER WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, CONCERNING THE SOFTWARE, DOCUMENTATION, OR OTHER RELATED INFORMATION, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, WARRANTIES OR CONDITIONS OF FREEDOM FROM ERRORS OR DEFECTS, OR ANY WARRANTIES OR CONDITIONS OF SECURITY AGAINST DATA BREACHES OR INTRUSIONS. Guardhat, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS DO NOT WARRANT THAT THE SOFTWARE OR DATA WILL MEET USER’S REQUIREMENTS, THAT OPERATION OF THE SOFTWARE OR AVAILABILITY OF DATA WILL BE UNINTERRUPTED, OR THAT THE SOFTWARE OR DATA IS WITHOUT ERROR. NEITHER Guardhat NOR ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS WILL BE RESPONSIBLE FOR THE ACCURACY OR USE OF DATA ACCESSED BY THE SOFTWARE. THE ABOVE-STATED LIMITED WARRANTY IS VOID WITH RESPECT TO ANY UNAUTHORIZED USE OF THE SOFTWARE, USE OF THE SOFTWARE OTHER THAN IN ACCORDANCE WITH Guardhat, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS’S WRITTEN INSTRUCTIONS AND DOCUMENTATION, USE OF SOFTWARE WITH PRODUCTS AND SERVICES NOT PROVIDED BY Guardhat, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS, AND AS TO SOFTWARE THAT HAS BEEN DAMAGED OR MODIFIED OTHER THAN BY Guardhat, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS.
6.3. As User’s sole and exclusive remedy for any valid warranty claim hereunder, Guardhat shall, in its sole discretion and at its sole cost and expense: (i) repair, replace or re-perform defective Software or installation services giving rise to the claim; or (ii) refund to User amounts paid for such defective Software or installation services.
6.4. The above warranties are void with regard to Software or installation services that are (i) not sold or provided by Guardhat; (ii) provided in beta form, or for evaluation, testing or demonstration purposes or for which Guardhat does not receive a fee; (iii) altered in any manner, except by Guardhat; (iv) installed, operated, repaired, or maintained other than in accordance with instructions supplied by Guardhat; or (v) subjected to abnormal physical or electrical stress, misuse, negligence, or accident. In addition, such warranties do not apply to: (a) any use of the Software in conjunction with accessories, services, products, or ancillary or peripheral equipment not sold, provided, or approved by Guardhat; or (b) any failure or delay caused by the Internet or User’s Internet service provider. User may have specific legal rights in some legal jurisdictions, in which case Guardhat’s warranty responsibilities hereunder shall be the minimum required by law.
7. Limitation of Liability
7.1. IN NO EVENT WILL GUARDHAT, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS BE LIABLE (I) FOR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING BUT NOT LIMITED TO ANY LOST PROFITS OR LOST SAVINGS, HOWEVER CAUSED, WHETHER FOR BREACH OR REPUDIATION OF CONTRACT, TORT, BREACH OF WARRANTY, NEGLIGENCE, OR OTHERWISE, WHETHER OR NOT GUARDHAT, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES; (II) FOR LOSS OF, DAMAGE TO, OR BREACH OF SOFTWARE, RECORDS OR DATA; (III) FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; (IV) FOR THIRD-PARTY CLAIMS AGAINST USER FOR LOSSES OR DAMAGES; (V) BUSINESS INTERRUPTION; OR (VI) ANY CLAIMS ARISING FROM USER’S USE OF THIRD PARTY SUPPLIES OR EQUIPMENT. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, GUARDHAT, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS’S TOTAL LIABILITY TO USER IS LIMITED TO ONE YEAR OF PAYMENTS MADE BY USER TO GUARDHAT, ITS SUPPLIERS, LICENSORS, AND SUBCONTRACTORS FOR THE PRODUCT OR SERVICE WHICH WAS THE SUBJECT OF THE CLAIM.
8. User Responsibilities
Although Guardhat makes the Software available for User’s use, User understands and acknowledges that it is solely responsible for the use it makes of the Software including, but not limited to, complying with all user instructions, safe workplaces practices, and the monitoring and verifying the input to and output from the Software. THE SOFTWARE IS INTENDED TO SUPPLEMENT, NOT REPLACE, APPROPRIATE WORKPLACE, PRIVACY, HEALTH, SAFETY AND ENVIRONMENTAL POLICIES AND PRACTICES. USER IS SOLELY RESPONSIBLE FOR COMPLIANCE WITH ALL WORKPLACE, PRIVACY, HEALTH, SAFETY, ENVIRONMENTAL AND OTHER APPLICABLE LAWS AND REGULATIONS. USER AGREES TO INDEMNIFY, HOLD HARMLESS, AND DEFEND GUARDHAT, ITS OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES FROM AND AGAINST ALL CLAIMS, LOSSES, DAMAGES, PENALTIES, FINES, LIABILITIES, COSTS AND EXPENSES, INCLUDING ATTORNEY’S FEES, THAT ARISE OR RESULT FROM USER’S USE OF THE SOFTWARE OR USER’S FAILURE TO COMPLY WITH SUCH LAWS AND REGULATIONS.
9. User Data and Guardhat’s Use of User Data
9.1. User acknowledges, agrees and understands that, in connection with Guardhat providing User with access to and use of the Guardhat Platform, information resulting from User’s use of the Guardhat Platform will be transmitted to Guardhat. User further acknowledges, agrees, and understands that such information will relate to User, Authorized Users and the devices utilized by User and Authorized Users, and that such information will be stored and maintained by Guardhat, its Affiliates, subcontractors and/or its agents (such information is collectively “User Data”). User is solely responsible for the timeliness and accuracy of all User Data submitted to the Guardhat Platform and represents that it has all necessary authority for the disclosure of User Data to Guardhat. Guardhat will undertake commercially reasonable measures to maintain the security and confidentiality of User Data.
9.2. Guardhat and its Affiliates, subcontractors, partners (including marketing partners), and agents may monitor, access, collect, and use, but only as permitted by law, User Data in order to (a) operate, support, and enhance the Guardhat Platform for the User, (b) monitor compliance with this Agreement, (c) inform the User of products and services and (d) as required by applicable laws. Guardhat may also share device usage data with the manufacturers and retailers of devices which are integrated with the Guardhat Platform.
9.3. Guardhat may de-identify User Data using standard industry practices. Information that has been de-identified such that it does not identify User or Authorized Users shall not be User Data, and Guardhat may use or disclose it for any purpose, including to improve the Services, create new features, to conduct research, sell personal protective equipment or services, and develop new products or services, including reports based on analytics associated with the Guardhat Platform usage. Guardhat may also aggregate User Data with other data and may use that aggregated User Data to perform services for or provide products to third parties, provided that no such data would enable those third parties to identify Authorized Users or User, absent the consent of User. Guardhat’s use and retention of de-identified User Data for uses and purposes set forth herein may extend beyond the term of this Agreement.
9.4. User acknowledges, agrees and understands that Guardhat may store User Data on servers provided by third parties in the US and countries other than the US. User is responsible for complying with all applicable laws, including local and other regulations, pertaining to personal information, such as data from or relating to its workers. User is responsible for providing individuals with any privacy notices and obtaining any consents required by applicable laws for the collection, use, disclosure, and processing of personal information in connection with User’s use of the Guardhat Platform and Services.
9.5. Upon Guardhat’s confirmation of an incident in which there is unauthorized access to User Data (“Security Incident”), Guardhat will (i) notify User promptly after Guardhat becomes aware of the confirmed Security Incident and (ii) take reasonable steps to mitigate the effects and minimize any damage resulting from the Security Incident.
9.6. User Data may be stored in mobile applications installed on mobile devices authorized for accessing the Guardhat Platform. User is solely responsible for safeguarding the mobile device and its appropriate use. User is solely responsible to notify Guardhat in case of lost or missing mobile device authorized for accessing the Guardhat Platform.
10. Feedback Automatically Becomes Guardhat’s Property
Any feedback or suggestions provided by User to Guardhat regarding the products or services herein, (“Suggestions”) shall be the property of Guardhat and User hereby assigns to Guardhat all right, title and interest worldwide in and to such Suggestions and the related intellectual property rights. User acknowledges and understands that, in connection with certain products and services, certain information regarding User’s use of the Guardhat Platform and Services is transmitted to Guardhat. Such information may be collected and used by Guardhat to provide Support Services to User, and for research and marketing purposes. For the avoidance of doubt, Guardhat may use any feedback, suggestions, product experiences, and product outcomes provided or realized by User to improve or market the product or service, create new features, to conduct research, and develop new products or services, including reports based on analytics associated with the Guardhat Platform usage.
11. General
11.1. Governing Law, Limitation on Action and Attorneys’ Fees. Unless otherwise specified below in the Region-Specific Terms of Service for Guardhat Platform or otherwise mandated by law, this Agreement is governed by the laws of the State of Michigan, USA, excluding its conflict of laws rules, and specifically excluding the United Nations Convention on Contracts for the International Sale of Goods. The parties consent to personal jurisdiction and venue in the state and federal courts sitting in Wayne County in the State of Michigan, USA, and agree that all disputes arising from this Agreement shall be venued in such courts. The parties also agree that, regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to this Agreement must be brought within one (1) year after such claim or cause of action arose or be forever barred.
11.2. Export Restrictions. User agrees that it will not export or re-export (directly or indirectly) any products or documentation or other technical data therefore, in whole or in part, without complying with the U.S. Export Administration Act of 1979and the regulations thereunder. User shall indemnify, defend (with counsel approved in writing in advance by Guardhat) and hold Guardhat harmless against any claims for cost, damage, expense or liability arising out of or in connection with these restrictions by User.
11.3. Assignment. User may not assign, voluntarily, by operation or law, in connection with a change in control, merger, or otherwise, this Agreement or any licenses granted or obligations set forth in these Terms and Conditions to any third party without prior written consent of Guardhat.
11.4. Severability. If any provision of this Agreement is held invalid, illegal, unenforceable, or in conflict with any law having jurisdiction over this Agreement, the validity, legality, and enforceability of the remaining portions or provisions hereof will not be affected or impaired.
11.5. Force Majeure. Neither Party will be responsible for any failure to perform due to causes beyond its reasonable control (each a “Force Majeure”), including, but not limited to, acts of God, war, riot, criminal acts, embargoes, acts of civil or military authorities, denial of or delays in processing of export license applications, fire, floods, earthquakes, accidents, strikes, or fuel crises, terrorist actions, or widespread internet or electrical outages, provided that such Party gives prompt written notice thereof to the other Party.
11.6. Waiver. No waiver will be implied from conduct or failure to enforce rights, and no waiver will be effective unless in writing signed on behalf of the party against whom the waiver is asserted. The exercise of any right or remedy provided in this Agreement will be without prejudice to the right to exercise any other right or remedy provided by law or equity, except as expressly limited by this Agreement.
11.7. Compliance with Laws. User is solely responsible for determining whether its use of the Guardhat Platform complies with applicable laws and regulations, including but not limited to those governing the collection, storage and use of personal information. User is solely responsible for establishing and maintaining policies, procedures, and third-party agreements relating to such information (including relating to collection, storage and use) as required by law.
11.8. Prior Agreement. This Agreement supersedes and replaces any and all prior Terms of Service and License for Guardhat Platform previously executed by the User, unless such prior agreements were executed between User and Guardhat for a release version of the Guardhat Platform prior to or including release version 3.2 (released April 19, 2017), in which case any conflicting terms of the prior agreements shall control.
11.9. Amendments. Guardhat will notify User before Guardhat makes any material changes to terms of this Agreement. User’s continued use of the Guardhat Platform or Services, following notice of the material changes to terms of this Agreement constitutes User’s acceptance of any changed terms.
11.10. Notices. Any notice required or permitted by this Agreement shall be in writing to (1) SIMinfo@Guardhat.com for Guardhat or (2) a mailing address or email address of User or Principal.
Region-Specific Terms of Service for Guardhat Platform
In addition to the Terms of Service and License for Guardhat Platform set forth above, User further agrees to and contracts with Guardhat under the following Region-Specific Terms of Service for Guardhat Platform for any country or region designated below from which the User accesses or uses Guardhat Platform and Services.
Europe
User Data and Guardhat’s Use of User Data
To the extent that User Data comprises Personal Information (as defined in the Guardhat Platform Data Processing Agreement), Guardhat will process that data in accordance with the Guardhat Platform Data Processing Agreement, which can be accessed here, www.guardhat.com/data-processing-agreement.
Canada
User Data and Guardhat’s Use of User Data
User and Guardhat hereby acknowledge and agree:
(a) that User has obtained the relevant consent necessary for the collection, use, disclosure, and transmission of personal information (defined as any piece of information, either factual or subjective, about an identifiable individual) for storage outside of Canada in connection with User’s use of the Platform and Services, in accordance with PIPEDA (Personal Information Protection and Electronic Documents Act) and any other applicable provincial legislation concerning the protection of personal information;
(b) that all personal information exchanged between User and Guardhat will be used solely for the purposes described in this Agreement and for no other purpose;
(c) not to disclose any personal information other than what is necessary to fulfill the purpose of the Agreement or as required by law;
(d) to use appropriate security measures to protect all personal information exchanged between User and Guardhat;
(e) to return or securely dispose of the transferred information once it is no longer needed for the purpose specified herein or after the termination of the Agreement; and
(f) to cooperate with one another by notifying each other of all access requests, rectification requests or consent revocations received relative to personal information held by User or Guardhat as a result of the exchange of information between the parties.
(g) User shall indemnify Guardhat and its directors, officers, agents and employees from and against any direct damages which may incur in connection with a breach of the clauses (a) to (f) or a breach of PIPEDA or other related provincial legislation concerning the protection of personal information by Guardhat, its officers, employees, agents and subcontractors.