terms and condıtıons
Definitions
a. "Aggregated Statistics" means data and information related to Licensee's use of the Services that is used by Provider in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services.
b. "Customer Data" means [other than Aggregated Statistics] information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee or an Authorized User through the Services.
c. "Provider IP" means the Services, the Documentation, and any and all intellectual property provided to Licensee or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP [includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but] does not include Customer Data.
b. "Customer Data" means [other than Aggregated Statistics] information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Licensee or an Authorized User through the Services.
c. "Provider IP" means the Services, the Documentation, and any and all intellectual property provided to Licensee or any Authorized User in connection with the foregoing. For the avoidance of doubt, Provider IP [includes Aggregated Statistics and any information, data, or other content derived from Provider's monitoring of Customer's access to or use of the Services, but] does not include Customer Data.
Warranty Disclaimer
1. The Provider IP 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. Provider makes no warranty of any kind that the Provider IP, or any products or results of the use thereof, will meet customer's or any other person's requirements, operate without interruption, achieve any intended result, be compatible or work with any software, system, or other services, or be secure, accurate, complete, free of harmful code, or error free.
2. Licensee shall only use provider ip and services solely as a lift plan aid. Provider IP and services are a recommendation and shall not be used as a substitute for customer’s and authorized persons’ good judgment. Use of Provider IP, services and the information provided therein shall not supersede or override any applicable operator’s or safety manuals, industry standards or regulations. It is customer’s sole responsibility to ensure that lift operations are safe and accurate in all respects.
2. Licensee shall only use provider ip and services solely as a lift plan aid. Provider IP and services are a recommendation and shall not be used as a substitute for customer’s and authorized persons’ good judgment. Use of Provider IP, services and the information provided therein shall not supersede or override any applicable operator’s or safety manuals, industry standards or regulations. It is customer’s sole responsibility to ensure that lift operations are safe and accurate in all respects.
Indemnification
1. Provider Indemnification
a. Provider shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys' fees) ("Losses") incurred by Licensee resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Licensee promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
b. If such a claim is made or appears possible, Licensee agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.
c. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Customer Data.
2. Licensee Indemnification
To the maximum extent permitted by law, Licensee shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from or arising in any manner out of Licensee’s use of Provider IP (including the creation of lift plans therefrom), including any direct or Third-Party Claims for death or injury to persons, damage or injury to property (including equipment), provided that Licensee may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
3. Sole Remedy
This 8 sets forth licensee's sole remedies and provider's sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. in no event will provider's liability under this section 8 exceed the amounts paid to provider by licensee.
a. Provider shall indemnify, defend, and hold harmless Licensee from and against any and all losses, damages, liabilities, and costs (including reasonable attorneys' fees) ("Losses") incurred by Licensee resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, or any use of the Services in accordance with this Agreement, infringes or misappropriates such third party's US intellectual property rights, provided that Licensee promptly notifies Provider in writing of the claim, cooperates with Provider, and allows Provider sole authority to control the defense and settlement of such claim.
b. If such a claim is made or appears possible, Licensee agrees to permit Provider, at Provider's sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Licensee to continue use. If Provider determines that neither alternative is reasonably available, Provider may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Licensee.
c. This Section 8(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by Provider or authorized by Provider in writing; (B) modifications to the Services not made by Provider; or (C) Customer Data.
2. Licensee Indemnification
To the maximum extent permitted by law, Licensee shall indemnify, hold harmless, and, at Provider's option, defend Provider from and against any Losses resulting from or arising in any manner out of Licensee’s use of Provider IP (including the creation of lift plans therefrom), including any direct or Third-Party Claims for death or injury to persons, damage or injury to property (including equipment), provided that Licensee may not settle any Third-Party Claim against Provider unless Provider consents to such settlement, and further provided that Provider will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.
3. Sole Remedy
This 8 sets forth licensee's sole remedies and provider's sole liability and obligation for any actual, threatened, or alleged claims that the services infringe, misappropriate, or otherwise violate any intellectual property rights of any third party. in no event will provider's liability under this section 8 exceed the amounts paid to provider by licensee.
Limitations of Liability
1. Limitations of liability
In no event will provider be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, 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; (e) cost of replacement goods or services, or (f) any crane, rigging or other failure for any reason, (g) injury to person or property incurred by licensee or any third party, in each case regardless of whether provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. in no event will provider's aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amounts paid to provider under this agreement in the six-month period preceding the event giving rise to the claim or $10,000.00, whichever is less.
In no event will provider be liable under or in connection with this agreement under any legal or equitable theory, including breach of contract, 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; (e) cost of replacement goods or services, or (f) any crane, rigging or other failure for any reason, (g) injury to person or property incurred by licensee or any third party, in each case regardless of whether provider was advised of the possibility of such losses or damages or such losses or damages were otherwise foreseeable. in no event will provider's aggregate liability arising out of or related to this agreement under any legal or equitable theory, including breach of contract, tort (including negligence), strict liability, and otherwise exceed the total amounts paid to provider under this agreement in the six-month period preceding the event giving rise to the claim or $10,000.00, whichever is less.
Intellectual Property Ownership and Feedback
1. Provider IP
Licensee acknowledges that, as between Licensee and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
2. Customer DATA
Provider acknowledges that, as between Provider and Licensee, Licensee owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Licensee hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Licensee [, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.].
3. Feedback
If Licensee or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Provider on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
Licensee acknowledges that, as between Licensee and Provider, Provider owns all right, title, and interest, including all intellectual property rights, in and to the Provider IP.
2. Customer DATA
Provider acknowledges that, as between Provider and Licensee, Licensee owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Licensee hereby grants to Provider a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for Provider to provide the Services to Licensee [, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Aggregated Statistics.].
3. Feedback
If Licensee or any of its employees or contractors sends or transmits any communications or materials to Provider by mail, email, telephone, or otherwise, suggesting or recommending changes to the Provider IP, including without limitation, new features or functionality relating thereto, or any comments, questions, suggestions, or the like ("Feedback"), Provider is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Licensee hereby assigns to Provider on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and Provider is free to use, without any attribution or compensation to any party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although Provider is not required to use any Feedback.
Data Protection and Security Certifications
INFORMATION SECURITY POLICY STATEMENT
The security of information in all its forms is of the utmost importance to the Provider. The Provider acknowledges that as an organization, it can minimize information security risks through the preservation of confidentiality, integrity, and availability of information. Provider has established the information security objectives:
- Strategic and operational information security risks are understood and treated to be acceptable to Provider
- The confidentiality of client information, product development, and marketing plans is protected- The integrity of company records is preserved
- Public web services and internal networks meet specified availability standardsTo achieve these objectives, we shall act to:
- Provider communicates this policy to all employees.
The security of information in all its forms is of the utmost importance to the Provider. The Provider acknowledges that as an organization, it can minimize information security risks through the preservation of confidentiality, integrity, and availability of information. Provider has established the information security objectives:
- Strategic and operational information security risks are understood and treated to be acceptable to Provider
- The confidentiality of client information, product development, and marketing plans is protected- The integrity of company records is preserved
- Public web services and internal networks meet specified availability standardsTo achieve these objectives, we shall act to:
- Provider communicates this policy to all employees.
Service Level Agreement
This section outlines the service levels to be provided in the delivery of Sarus Lifting. It also provides service delivery parameters, against which the delivery of Software as a Service (SaaS) will be evaluated.
1. Service uptime commitment
For the purpose of measuring the quality of service that Provider is delivering to Licensee, Provider provides the following commitment:
Provider will provide Licensee access to the SaaS production application on a twenty-four hour, seven days a week (24x7) basis at a rate of 99.9 % (“SaaS Services Uptime Metric”).
The SaaS Services Uptime Metric commences on the Go Live Date. “The Go Live Date” is the date at which Provider has concluded end-user testing, Provider has prepared production environment, Licensee has become familiar with the software, and at which point the Licensee end-users access the production environment with production data.
2. Boundaries and exclusions
The SaaS Services Uptime Metric shall not apply to performance issues caused by the following:
• Overall Internet congestion, slowdown, or unavailability
• Unavailability of generic Internet services (e.g. DNS servers) due to virus or hacker attacks
• Force majeure events
• Actions or inactions of the Licensee (unless undertaken at the express direction of Sarus Lifting ) or third parties beyond the control of the Provider
• A result of Licensee equipment or third-party computer hardware, software, or network infrastructure not within the sole control of the Provider
• Scheduled SaaS infrastructure maintenance
In addition to scheduled SaaS infrastructure maintenance, upgrades, and patches may occur and require downtime in addition to the scheduled maintenance. The downtime will be scheduled in advance and coordinated with Licensee.
3. Customer Support
Provider technical support is available from 7:00 am to 6:00 pm (MST) Monday through Friday, excluding all holidays.The support is provided via the Support portal which is integrated with the Dashboard. Requests for support will be fulfilled based on priorities (Critical, High, Medium, Normal) which are determined by urgency and level of impact. New feature requests are NOT included in customer support.Service Level response times to service requests are measured once a request is submitted via the Dashboard Support portal. Other forms of contact may affect the ability of Provider Support to meet the requests in a timely fashion. Examples include:
- Direct emails to individual support personnel
- Direct phone calls to individual support personnel.
4. Response times
The response time measures how long it takes the Provider to respond to a support request raised via the Sarus Lifting Support portal. Provider is deemed to have responded when it has replied to Licensee’s initial request. This may be in the form of an email or telephone call, to either provide a solution or request further information.Guaranteed response times depend on the severity of the issue. They are shown in this table:
Fatal Severe Minor
30 minutes 60 minutes 180 minutes
5. Severity levels
The severity levels shown in the tables above are defined as follows:
Fatal (Level 1): Complete degradation — all users and critical functions affected. Item or service completely unavailable.
Severe (Level 2): Significant degradation — many users or critical functions affected.
Minor (Level 3): Limited degradation — a limited number of users or functions affected. Business processes can continue.
6. Minimum Requirements
The required configurations for access to Sarus Lifting include:
• Internet connection with adequate bandwidth
• Google Chrome Internet Browser
• Apple iPhone or iPad running iOS version 7.0+
• Android Tablet or Phone with minimum 1GB RAM and running Android 4.0+
1. Service uptime commitment
For the purpose of measuring the quality of service that Provider is delivering to Licensee, Provider provides the following commitment:
Provider will provide Licensee access to the SaaS production application on a twenty-four hour, seven days a week (24x7) basis at a rate of 99.9 % (“SaaS Services Uptime Metric”).
The SaaS Services Uptime Metric commences on the Go Live Date. “The Go Live Date” is the date at which Provider has concluded end-user testing, Provider has prepared production environment, Licensee has become familiar with the software, and at which point the Licensee end-users access the production environment with production data.
2. Boundaries and exclusions
The SaaS Services Uptime Metric shall not apply to performance issues caused by the following:
• Overall Internet congestion, slowdown, or unavailability
• Unavailability of generic Internet services (e.g. DNS servers) due to virus or hacker attacks
• Force majeure events
• Actions or inactions of the Licensee (unless undertaken at the express direction of Sarus Lifting ) or third parties beyond the control of the Provider
• A result of Licensee equipment or third-party computer hardware, software, or network infrastructure not within the sole control of the Provider
• Scheduled SaaS infrastructure maintenance
In addition to scheduled SaaS infrastructure maintenance, upgrades, and patches may occur and require downtime in addition to the scheduled maintenance. The downtime will be scheduled in advance and coordinated with Licensee.
3. Customer Support
Provider technical support is available from 7:00 am to 6:00 pm (MST) Monday through Friday, excluding all holidays.The support is provided via the Support portal which is integrated with the Dashboard. Requests for support will be fulfilled based on priorities (Critical, High, Medium, Normal) which are determined by urgency and level of impact. New feature requests are NOT included in customer support.Service Level response times to service requests are measured once a request is submitted via the Dashboard Support portal. Other forms of contact may affect the ability of Provider Support to meet the requests in a timely fashion. Examples include:
- Direct emails to individual support personnel
- Direct phone calls to individual support personnel.
4. Response times
The response time measures how long it takes the Provider to respond to a support request raised via the Sarus Lifting Support portal. Provider is deemed to have responded when it has replied to Licensee’s initial request. This may be in the form of an email or telephone call, to either provide a solution or request further information.Guaranteed response times depend on the severity of the issue. They are shown in this table:
Fatal Severe Minor
30 minutes 60 minutes 180 minutes
5. Severity levels
The severity levels shown in the tables above are defined as follows:
Fatal (Level 1): Complete degradation — all users and critical functions affected. Item or service completely unavailable.
Severe (Level 2): Significant degradation — many users or critical functions affected.
Minor (Level 3): Limited degradation — a limited number of users or functions affected. Business processes can continue.
6. Minimum Requirements
The required configurations for access to Sarus Lifting include:
• Internet connection with adequate bandwidth
• Google Chrome Internet Browser
• Apple iPhone or iPad running iOS version 7.0+
• Android Tablet or Phone with minimum 1GB RAM and running Android 4.0+
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