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SUBSCRIPTION AGREEMENT TERMS AND CONDITIONS
Service: You (the “Subscriber”) hereby subscribe for a non-exclusive use license (the “License”) from EHS Momentum, LLC (“EHSM”) to use the MyServicePak™ Workflow Management Software (“Software”). EHSM shall at all times own the Software and its related intellectual property and nothing herein shall create an ownership interest in the Software of any kind for the Subscriber.
Term and Payment Terms: The term of the agreement is month-to-month, and the License shall be valid for Subscribers who are current on all outstanding invoices. If Subscriber has elected a free trial period, the automatic billing on the credit card provided shall begin 30 days from the date the credit card was entered and automatically bill each month on that date. Termination notice must be sent via email to email@example.com at least 10 days prior to the next billing cycle. Subscriber will be responsible for payment of all subscription fees incurred prior to termination. Upon termination, Subscriber will no longer have access to nor a license to use the Software. Subscriber agrees that EHSM may keep one (1) copy for archival and proof purposes. EHSM agrees to keep this information confidential.
Subscriber Responsibilities: Success of the Subscription depends upon Subscriber’s direct involvement and active use of the Software. Subscriber is responsible for loading and managing all Subscriber data, including but not limited to Users, Customers and Checklists. Supplier certifies that it will keep an accurate count of Users and understands that pricing is dynamic and based on User count. EHSM does not seek personally identifiable information and Subscriber agrees not to provide it to EHSM. The Software is an aid to Subscriber in carrying out its business, but Subscriber must still deliver value and timely service to its customers.
Confidential Information: Each party may be entrusted with trade secrets and confidential information of the other. These will include EHSM’s Software and related materials, Subscriber’s employee and contractor data, and other materials or information which derive actual or potential value from not being generally known to or readily ascertainable by proper means by others who can obtain value from their disclosure or use; are the subject of reasonable efforts to protect their security; and which the receiving party is specifically informed (or reasonably should realize) is confidential and proprietary (collectively “Confidential Information”). “Confidential Information” shall not include information which the receiving party (i) already had or knew, (ii) can show it independently developed without reference to anything received from the disclosing party, (iii) learns from a third party without obligation, or (iv) is required by law to be disclosed (provided it gives the other party such notice as is practicable under the circumstances), or which (v) is or becomes public knowledge through no fault of the receiving party. During the Term and at all times thereafter, each party shall hold the other’s Confidential Information in trust and confidence and will neither use it for any purpose other than provision of the Services, nor disclose it to any third party.
Indemnification: Subscriber shall indemnify, defend and hold harmless EHSM and its personnel from and against any and all claims, losses, costs, damages, and liabilities, including reasonable attorneys' fees (“Claims”) incurred, caused or occasioned by acts or omissions of Subscriber, its employees, agents or other representatives, except to the extent such Claims result from EHSM’s gross negligence or willful misconduct.
Limited Warranty: EHSM warrants that the Software will be provided in a good and workmanlike manner, at the time they are performed. EHSM MAKES NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO MERCHANTABILITY, TITLE OR NON-INFRINGEMENT, OR FITNESS FOR A PARTICULAR PURPOSE. Without limiting the generality of the foregoing, EHSM does not warrant that the MyServicePak™ software will be bug- or error-free, will operate without interruption, or will be free from unlawful interference, hacking or interception.
Limitation of Liability: EHSM’s sole liability, and Subscriber’s sole remedy in event of breach, shall be replacement of Services or refund of amounts actually paid by Subscriber for Services found to be deficient. IN NO EVENT WILL EHSM BE LIABLE FOR LOST PROFITS OR ANY OTHER INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. UNDER NO THEORY OR CIRCUMSTANCES SHALL THE LIABILITY OF EHSM OR ANY OF ITS OFFICERS, EMPLOYEES OR REPRESENTATIVES EXCEED THE AMOUNT ACTUALLY PAID BY SUBSCRIBER AND RECEIVED BY EHSM FOR SERVICES FOUND TO BE DEFICIENT OR DEFECTIVE. EHSM SHALL NOT BE LIABLE TO THE EXTENT CLAIMS ARE CAUSED BY THE ACTS OR OMISSIONS OF SUBSCRIBER OR ANY OF SUBSCRIBER’S EMPLOYEES OR CONTRACTORS.
Miscellaneous: This Agreement is not assignable by Subscribers in whole or part without the EHSM’s prior consent and such consent shall not be unreasonably withheld or delayed. The Parties are independent contractors, and this Agreement does not create a partnership, joint venture, or other relationship. Neither party may bind to the other to any obligation except as specifically stated herein. This Agreement shall be governed by and construed in accordance under Texas law, excluding its conflict of law provisions, and ANY DISPUTE RELATING TO THE RELATIONSHIP BETWEEN THE PARTIES SHALL BE RESOLVED IN THE STATE OR FEDERAL COURTS IN DALLAS, TEXAS AND NO OTHER LOCATION. No failure or delay on the part of a party in exercising a right hereunder shall operate as a waiver of, or impair, any such right. No single or partial exercise of any such right shall preclude any other or further exercise thereof or the exercise of any other right. No waiver of any such right shall be deemed a waiver of any other right hereunder. If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall be deemed separable and enforceable, and in lieu of such invalid or unenforceable provision there shall be deemed substituted automatically a provision as similar in force and effect to the severed provision as possible, while still being valid and enforceable. No delay or failure to perform by any party, other than payment of money, shall constitute a default to the extent it is caused by an occurrence beyond the control of the party charged with performance and which could not have been prevented by the exercise of reasonable diligence by such party. Sections 5, 6, 7, and 8, hereof, and all other provisions which by their terms or nature should survive termination or expiration, will so survive. This agreement becomes effective upon Subscriber clicking they approve these terms. This Agreement constitutes the entire agreement between the parties and supersedes all other oral understandings, representations, commitments, or understandings, whether written or oral.