These Bacharach, Inc. Terms of Service (the “ Terms ”) govern Your use of any Bacharach, Inc. (“ Provider ”) application by any authorized user with a Bacharach, Inc. account (“ You ”). Any rights and obligations afforded to You hereunder shall equally extend to Your Organization. Provider agrees to provide You with access to the Services strictly in accordance with the terms and conditions set forth in these Terms.
1. Definitions
All capitalized terms not otherwise defined in this Terms shall have the meanings set forth below in this Section 1 or in the cover page of this Terms:
1.1 “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity.
1.2 “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
1.3 “Anonymized Statistics” means data and information related to Your use of the Services and used by Provider in an anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services to, among other uses, enhance the Services or product offerings of Provider or its Affiliates.
1.4 “Authorized User” means You’s employees and contractors (i) who are authorized by You to access and use the Services under the rights granted to You pursuant to this Terms and (ii) for whom access to the Services has been purchased hereunder.
1.5 “You Data” means, other than Anonymized Statistics, information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of You or an Authorized User through the Services.
1.6 “You Personal Information” means any information about a natural person provided by You to Provider incidental to the performance of this Terms and that could be used to identify that person, including a name, address, email address, photograph, voice sample, or any other similar data.
1.7 “Documentation” means any and all user guides, instructions, handbooks, or manuals relating to the Services provided by Provider to You either electronically or in hard copy form, including any online technical assistance provided through Provider’s website.
1.8 “Effective Date” shall mean the date that You signs this Terms, whether via electronic signature or otherwise.
1.9 “Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, Trojan Horse, time bomb, corrupted file, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent You or any Authorized User from accessing or using the Services or Provider’s systems as intended by this Terms.
1.10 “Provider IP” means the Services, the Documentation, and any and all intellectual property provided to You or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP includes Anonymized Statistics and any information, data, or other content derived from Provider’s monitoring of You’s access to or use of the Services, but does not include You Data.
1.11 “Services” means the software-as-a-service offering described in the Estimate.
1.12 “Third-Party Products” means any non-Provider platforms or applications, including software or updates in object code form, including documentation such as user manuals, handbooks and guides from a third party, that are provided with, or incorporated into the Services.
1.13 “Third-Party Systems” means any product, application, or service that enable or assist You to access or use the Services but is not owned or controlled by Provider, including any hardware, cellular network or device, Bluetooth® product or tool, web platform, product, application, software, connection, system, or similar system.
2. Access and Use; Authority
2.1 Provision of Access
Subject to and conditioned on Your compliance with these Terms, Provider hereby grants You a non-exclusive, non-transferrable license to access and use the Services and Documentation during the Term in connection with the operation of MSA Safety products.
2.2. Use Restrictions
You shall not use the Services for any unlawful purpose or any purpose beyond the scope of the access granted in these Terms. You shall not at any time, directly or indirectly: (i) copy, modify, or create derivative works of the Services or Documentation, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Services or Documentation, except as authorized in writing by Provider; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services, in whole or in part; (iv) remove any proprietary notices from the Services or Documentation; (v) use the Services or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) input, upload, transmit or otherwise activate any Harmful Code into the Provider’s systems; (vii) access or use the Services for purposes of competitive analysis; or (viii) access or use the Services in a way that circumvents or exceeds Service account limitations or requirements. You shall comply with all applicable local, state, regional, federal, and foreign laws, treaties, regulations, and conventions in connection with this Terms, including without limitation those related to privacy and electronic communications. You shall not use the Services or register an account with Provider if You are under the age of 13 years old.
2.3. Suspension
Notwithstanding anything to the contrary in this Terms, Provider may temporarily suspend Your access to any portion or all of the Services if: (i) Provider reasonably determines that (A) there is a cyber threat or attack on any of the Provider IP; (B) Your use of the Services disrupts or poses a security risk (e.g., due to input or upload of Harmful Code) to the Provider, the Provider IP or to any other You or vendor of Provider; (C) You are using the Services for fraudulent or illegal activities; (D) You are not permitted to use the Services by applicable law or order; or (F) You have the Use Restrictions set forth herein; (ii) any vendor of Provider has suspended or terminated Provider’s access to or use of any Third-Party Systems; or (iii) in accordance with any other right of Provider described herein (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Provider shall use commercially reasonable efforts to provide written notice of any Service Suspension to You and to provide updates regarding resumption of access to the Services following any Service Suspension. Provider, in its discretion, may resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Provider will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that You may incur as a result of a Service Suspension under this Section 2.3.
2.4. Changes
As part of its ongoing mission to improve the Provider IP, Documentation and/or Services and Your use of the Services, Provider reserves the right, in its sole discretion, to hereinafter make any changes to the Services, Provider IP, and/or Documentation that it deems necessary or useful. Such changes may include, but are not limited to, updates to functionality, user interface, training and education tools, usability and Documentation.
2.5. Anonymized Statistics
Notwithstanding anything to the contrary in this Terms, Provider may monitor You use of the Services and collect and compile Anonymized Statistics, which will include and incorporate the You Data. As between Provider and You, all right, title, and interest in Anonymized Statistics, and all intellectual property rights therein, belong to and are retained solely by Provider. You acknowledges that Provider may compile Anonymized Statistics based on You Data input into the Services. You agrees that Provider may (i) make Anonymized Statistics publicly available in compliance with applicable law, and (ii) use Anonymized Statistics to the extent and in the manner permitted under applicable law; provided that such Anonymized Statistics do not identify You or Your Confidential Information unless Provider has obtained You prior written consent, not to be unreasonably withheld.
2.6. Services Support
The Services include Provider’s standard You support services (“Support Services”), which can be accessed using the following URL: https://status.safetyio.com or any successor website address (“Support Terms and Conditions”). Provider may amend the Support Terms and Conditions from time to time in its sole discretion.
2.7. Service Availability
Provider will use commercially reasonable efforts to make the Services available in accordance with industry standards, excluding unavailability resulting from: (a) any act or omission by You or use of the Services by You or Your access credentials, that do not strictly comply with this Terms and the instructions given by Provider; (b) Your failure to comply with these Terms; (c) Your internet, mobile, or Bluetooth® connectivity; (d) Force Majeure Event; (e) failure, interruption, outage, or other problem with any software, hardware, system, device, network, facility, or other matter not supplied by Provider as part of this Terms; (f) scheduled downtime or outages; (g) unavailability due to Third-Party Products or Third-Party Systems; or (h) disabling, suspension, or termination of the Services pursuant to the Terms.
2.8. Data Backup and Continuity
Provider shall make reasonable efforts to restore any of Your Data that has been lost, destroyed, or corrupted while using the Services; however, these efforts shall not replace the need for You to obtain data backups or redundant data archives. Notwithstanding anything written above, PROVIDER HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF YOU DATA.
2.9. Due Authority
You represent that, by using the Services, You accept these Terms on behalf of Your employer and/or the organization benefiting from the Services (“Organization”), and You represent thatYou have the authority to do so and to so legally bind such party.
Your Responsibilities
2.10. General
You acknowledge and agree that You are solely responsible for Your use of the Services and Documentation and for establishing and following appropriate policies and procedures concerning any MSA Safety devices in Your possession, including any instructions in the Documentation. You further acknowledges and agrees that You are solely responsible to maintain any such device(s) in accordance with manufacturer instructions. Nothing in this Terms shall be construed to make Provider responsible in any way for the use or functionality of such devices or for Your safety and health program, and Provider disclaims all liability in this regard. You shall remain liable for all uses of the Services and Documentation, whether such access or use is permitted by or in violation of this Terms.
2.11. Systems and Cooperation
You shall at all times during the Term: (a) set up, maintain, and operate its systems and equipment in good repair and in accordance the requirements for which the Services are to be accessed or used; and (b) provide all cooperation and assistance as Provider may reasonably request to enable Provider to exercise its rights and perform its obligations under and in connection with this Terms. You expressly acknowledge that Provider has no control over or responsibility for any Third-Party Systems.
2.12. Effect of Failure or Delay
Provider is not responsible for any delay or failure of performance caused in whole or in part by Your Data, Third-Party Systems or Third-Party Products, and Your delay in performing, or failure to perform, any of its obligations under this Terms or Provider instructions in the Documentation.
2.13. Third-Party Products
Any Third-Party Products made available to You are subject to their own terms and conditions. If You do not agree to abide by the applicable terms for any such Third-Party Products, then You should not install or use such Third-Party Products. Provider is not responsible for any aspect of such Third Party Products.
2.14. Notification
You are solely responsible for the content, storage, and security of any telephonic or electronic communications while using the Services and hereby acknowledges that the timing and delivery of any such communications are dependent on Third-Party Systems. You shall use commercially reasonable efforts to prevent unauthorized access to or use of Service and promptly notify Provider of unauthorized access or use and any loss or theft or unauthorized use of any password or username.
3. Confidential Information
3.1 Confidential Information
From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information (collectively, “Confidential Information”). The receiving Party shall not disclose the disclosing Party’s Confidential Information to any person or entity, except (i) as contemplated to provide the Services or otherwise explicitly authorized under this Terms; or (ii) to the receiving Party’s affiliates and its and their employees or representatives who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (x) where legally permissible, in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law or regulation, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (y) to establish a Party’s rights under this Terms, including to make required court filings. No You Data embedded in the Anonymized Statistics shall be considered Confidential Information of You.
3.2 Exclusions
Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain through no fault of the receiving Party; (b) known to the receiving Party at the time of disclosure on a non-confidential basis; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party.
3.3 Personal Information
Provider is not a creator, user, or recipient of individually identifiable health information or of any other information that qualifies as “Protected Health Information” under the Health Insurance Portability and Accountability Act of 1996 (“HIPAA”) and therefore is not a “business associate” under HIPAA. Neither Party to this Terms contemplates or intends that Provider will be exposed to any Protected Health Information in connection with any of the Services.
3.4 Your Responsibility
Without prejudice to anything else contained herein, You and Your OrganizationYou are responsible for (a) security vulnerabilities from Your data or content and (c) any use by You in a manner that is inconsistent with the terms of this Terms. To the extent You discloses or transmits any Data or information to a third party, Provider is no longer responsible for the security, integrity, or confidentiality of such content outside of Provider’s control.
4. Intellectual Property Ownership
4.1 Provider IP
You acknowledge that Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP. If You suggest or recommend any changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like (“Feedback”), You hereby assign to Provider a worldwide, royalty-free, perpetual, irrevocable, transferable right to use, modify, incorporate, and distribute such Feedback, without attribution and for any purpose whatsoever. Any rights in the Services or Provider’s IP not expressly granted herein by Provider are reserved by Provider.
4.2 Consent to Use Data
Following the expiration or termination of the Terms, Provider may deactivate Your account(s) and delete any data therein. Notwithstanding the above, Provider and its Affiliates shall continue to be entitled to reproduce, distribute, modify, and otherwise use and display any Your Data incorporated within the Anonymized Statistics or for other purposes stated herein.Notwithstanding anything else contained herein, You hereby irrevocably grants all such rights and permissions in or relating to Your Data as are necessary or useful to Provider, its Affiliates, its Subcontractors, and the Provider Personnel (i) to provide the Services hereunder, (ii) enforce this Terms and legal rights; (iii) for business and internal evaluation purposes (e.g., marketing); and (iv) to comply with legal obligations (e.g., court-ordered subpoena requests).
5. Limited Warranty and Warranty Disclaimer
5.1 Limited Express Warranty
Provider warrants that during the subscription term, the Services will conform in all material respects as described in any Documentation and that Provider will not materially decrease the functionality described in the Documentation during the then-current subscription term.
5.2 Remedies
If the Services are not performed in accordance with the warranty set out in Section 7.1(ii) above, You shall promptly notify Provider in writing with a description of Your claim. As Your sole and exclusive remedy for any claim under this warranty and provided that such claim is determined by Provider to be Provider’s responsibility, Provider shall, within 30 days of its receipt of You’s written notice, (i) re-perform the affected Services so that they are conforming; (ii) provide You with a plan reasonably acceptable to You for re-performing the affected Services; or (iii) if neither (i) nor (ii) can be accomplished with reasonable commercial efforts from Provider, then Provider or You may terminate the affected Service, and You will be entitled to a refund of the pre-paid but unused portion of any fees paid for the affected Service. The preceding remedy shall constitute Provider’s entire liability and Your exclusive remedy for breach of the warranty set forth herein. If You elects not to terminate the Services or continues to use the Services, You waive all rights for the applicable warranty cure set forth herein.
5.3 Exclusions
Provider is not responsible for any claimed breach of any warranty set forth in section 8.1 caused by: (i) modifications made to the Services by anyone other than Provider; (ii) the combination, operation or use of the Services with any items not authorized by Provider; (iii) Provider’s adherence to Your specifications or instructions; (iv) errors caused by or related to Third-Party Products or Third-Party Systems, including but not limited to internet or platform connections, cellular service, or Bluetooth® connectivity, (v) Your software or IT systems or networks, including but not limited to network security systems (e.g., ports or firewalls), (vi) Your deviating from the Services operating procedures described in the Documentation; or (vii) Your failure to maintain MSA Safety devices or instruments in accordance with manufacturer’s instructions.
5.4 Third-Party Products and Third-Party Systems
You acknowledge that certain modules or platforms of the Services may involve or depend upon Third-Party Products or Third-Party Systems. Provider may add and/or substitute functionally equivalent products or services at any time in the event of product unavailability, end-of-life, or changes to software requirements. Your use of such Third-Party Products or Third-Party Systems shall be subject to, and You shall comply with this Terms and any applicable Third Party EULAs (End User License Terms). PROVIDER MAKES NO WARRANTY WITH RESPECT TO ANY THIRD-PARTY PRODUCTS OR THIRD-PARTY SYSTEMS. Your sole remedy with respect to such Third-Party Products or Third-Party Systems shall be pursuant to the original licensor’s warranty, if any, to Provider, to the extent permitted by the original licensor. Third-Party Products and Third-Party Systems are made available on an “AS IS, AS AVAILABLE” basis.
5.5 Warranty Disclaimer
EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1, THE PROVIDER IP, DOCUMENTATION AND SERVICES ARE PROVIDED “AS IS” AND PROVIDER HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. PROVIDER 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. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 6.1, PROVIDER MAKES NO WARRANTY OF ANY KIND THAT THE PROVIDER IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET YOU’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 HARMFUL CODE, OR ERROR FREE.
6. Indemnification
6.1 Indemnification
You shall indemnify, hold harmless, and, at Provider’s option, defend Provider from and against any claim, actions loss, expense, or cost resulting from any third-party claim that results or arises from Your use of the Services.
7. Limitations of Liability
7.1 Limitation of Liability
NOTWITHSTANDING ANYTHING ELSE CONTAINED HEREIN: (i) IN NO EVENT WILL PROVIDER BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, INDEMNITY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER A PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND (ii) IN NO EVENT WILL PROVIDER’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS TERMS UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, OR OTHERWISE EXCEED THE LESSER OF (A) THE TOTAL AMOUNTS ACTUALLY PAID PER YEAR TO PROVIDER UNDER YOUR ACCOUNT IN THE 12 MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR (B) $1,000,000. Nothing contained in this Section (Limitation of Liability) shall aim to limit any liability to the extent prohibited by law.
8. Term and Termination
8.1 Term
This agreement commences on the Effective Date and shall continue until the expiration or termination of the subscription term stated herein. The Services shall commence on or after the Effective Date and continue for the term set forth in the Estimate, or if no Estimate exists, the Term shall automatically renew month-to-month unless terminated by one of the parties in accordance with these Terms (“Initial Subscription Term”). Where an Estimate exists, at the end of the Initial Subscription Term, the subscription will automatically renew for successive one-year periods (each, a “Renewal Term”), unless either Party gives the other written notice of non-renewal at least 60 days before the end of the Initial Term or any then current Renewal Term. The Initial Term, and any Renewal Terms, are collectively referred to as the “Term.”
8.2 Termination
In addition to any other express termination right set forth in this Terms:
(i) Provider may terminate these Terms, including Your access to the Services, effective on written notice to You, if You: (A) fail to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Provider’s delivery of written notice thereof; or (B) breach any of Your obligations under Section 2 or Section 5;
(ii) either Party may terminate this Terms, effective on written notice to the other Party, if the other Party materially breaches these Terms, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
(iii) either Party may terminate these Terms, effective immediately upon written notice to the other Party, in the event of institution of bankruptcy, receivership, legal insolvency, reorganization, or other similar proceedings by or against Your or Your Organization under any section or chapter of the United States Bankruptcy Code, as amended, or under any similar laws or statutes of the United States or any state thereof, if such proceedings have not been dismissed or discharged within thirty (30) calendar days after they are instituted; or the legal insolvency or making of an assignment for the benefit of creditors or the admittance by either Party of any involuntary debts as they mature or the institution of any reorganization arrangement or other readjustment of debt plan of either Party not involving the United States Bankruptcy Code.
8.3 Effect of Expiration or Termination
Upon expiration or termination of this Terms, You shall immediately discontinue use of the Services. No expiration or termination will affect Your obligation to pay all Fees that may have become due before such expiration or termination, or entitle You to any refund.
8.4 Survival
Any terms by their nature intended to survive shall survive these Terms.
9. Miscellaneous
9.1 Force Majeure
In no event shall either Party be liable to the other Party, or be deemed to have breached this Terms, for any failure or delay in performing its obligations under this Terms, if and to the extent such failure or delay is caused by any circumstances beyond such Party’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, war, terrorism, invasion, epidemic, riot or other civil unrest, strikes, labor stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
9.2 Severability
If any provision of these Terms is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Terms or invalidate or render unenforceable such term or provision in any other jurisdiction.
9.3 Governing Law; Submission to Jurisdiction
These Terms are governed by and construed in accordance with the laws of the Commonwealth of Pennsylvania without giving effect to any choice or conflict of law provisions. Any dispute in connection with this Terms shall be resolved in the State or Federal Courts of the Commonwealth of Pennsylvania, each Party submitting to the jurisdiction and venue of such court. Both parties waive any rights to remove any action to a court located outside of Allegheny County, Pennsylvania. The Parties agree that the Terms do not constitute a contract for the sale of goods and therefore, the Terms shall not be governed by any codification of Article 2 or 2A of the Uniform Commercial Code (“UCC”), or any codification of the Uniform Computer Information Technology Act (“UCITA”), and the United Nations Convention on Contracts for the Sale of Goods (“CISG”) shall not apply.
9.4 Export Regulation
The Services utilize software and technology that may be subject to U.S. export control laws, including the US Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export, or release the Services or the underlying software or technology to, or make the Services or the underlying software or technology accessible from, any jurisdiction, country, or person to which export, re-export, or release is prohibited by law, rule, or regulation. You shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing, or otherwise making the Services or the underlying software or technology available outside the U.S. You shall not use these Services if You are named on any U.S. government list of persons or entities prohibited from receiving exports.