Terms of Service
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THIS AGREEMENT CONTAINS A MANDATORY ARBITRATION AND JURY TRIAL WAIVER PROVISIONS THAT REQUIRES THE USE OF ARBITRATION TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
KHA may, in its sole discretion, modify or update this Terms of Service from time to time, and so you should review this page periodically. If the revision, in our sole discretion, is material we will notify you via e-mail to the email associated with your account and by placing a prominent notice on the Service for the 30 days prior to the effective date of the change. We will also update the ‘last revised’ date at the top of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service. This Agreement applies to all visitors, users, and others who access the Service (“Users”).
Use of Our Service
You are responsible for your use of the Service, for any Content you post to the Service (including Content uploaded to the Service by KHA at your request), and for any consequences thereof. The Content you submit, post, or display will be able to be viewed by other users of the Service. You should only provide Content that you are comfortable sharing with others under this Agreement.
You need to register with KHA and create an account. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account and you must keep your account password secure. You must notify KHA immediately of any breach of security or unauthorized use of your account. KHA will not be liable for any losses caused by any unauthorized use of your account. By providing KHA your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail.
You agree to send us any updated SDS documentation you receive without unreasonable delay. Upon our request, you further agree to furnish KHA with an authorization letter explaining that KHA is working at your request to maintain your SDS in accordance with OSHA regulations. Such authorization letter may be used by KHA to request a SDS on your behalf from a chemical manufacturer or their agent or distributor.
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to KHA than a human can reasonably produce in the same period of time by using a conventional on-line web browser; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (xii) submitting to the Service or to KHA any personally identifiable information, except as necessary for the establishment of your account; or (xiii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service, stop providing the Service or features of the Service, or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability if in our sole determination you violate any provision of this Agreement.
You agree not to reverse engineer, decompile, or otherwise attempt to extract the source code of the software underlying the Service or any part thereof, unless this is expressly permitted or required by law, or unless authorized by KHA in writing. Except as permitted through the Service or these Terms of Service, you have to use our API(s) the Confined Space Manager API if you want to reproduce, modify, create derivative works, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Service or Content on the Service.
Content on the Service
Premium Upload Service
KHA may make premium services available to you, such as Content upload services whereby you provide KHA with documents or other information in hard copy form for manual upload to the Service by KHA on your behalf. Such submissions to KHA should be designated as “SDS Upload.” By submitting Content designated as “SDS Upload” to KHA, you consent to the publication of such Content on the Service.
All Content, whether publicly posted, privately transmitted, or uploaded by KHA at a User’s request is the sole responsibility of the person who originated such Content. We may not monitor or control the Content posted via the Service and, we cannot take responsibility for such Content. Any use or reliance on any Content or materials posted via the Service or obtained by you through the Service is at your own risk. We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted via the Service or endorse any opinions expressed via the Services. You understand that by using the Service, you may be exposed to Content that might be inaccurate, or in some cases, postings that have been mislabeled. Under no circumstances will KHA be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Service.
License to You
Subject to the terms and conditions of this Terms of Service, an applicable order form and payment of any fees stated therein, you are hereby granted a non-transferable, non-exclusive, revocable, non-sublicenseable, limited license to use the Service and request and download reports in accordance with this Terms of Service and solely for your internal business purposes. You are hereby granted a non-sub-licensable, non-exclusive license to use the reports for your reasonable business purposes. You agree not to sell (or re-sell) the Service (including any reports) through any other sales channel, including without limitation, any retailer, distributor, reseller, or bundler. KHA reserves all rights not expressly granted herein in the Service. The license is subject to usage limits, as more fully described in an applicable order form, and may not be accessed in excessive of that quantity (“Subscription Quantity”). If you exceed a contractual usage limit, you will promptly execute an order form for the next highest Subscription Quantity tier of the applicable Service and/or pay any invoice for excess usage in accordance with Section 4(b) (Payment Information; Taxes).
Licenses to KHA
You retain your rights to any Content you submit, post or display on or through the Service, including Content uploaded to the Service by KHA at your request. By submitting, posting or displaying Content on or through the Service, you grant us a worldwide, non-exclusive, royalty-free license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such Content in any and all media or distribution methods (now known or later developed). You agree that this license includes the right for KHA to provide, promote, and improve the Service and to make Content submitted to or through the Service (including Content uploaded by KHA at your request) available to other Users of the Service, subject to our terms and conditions for such Content use. Such uses by KHA, or other users of the Service, may be made with no compensation paid to you with respect to the Content that you submit, post, transmit or otherwise make available through the Service. We may modify or adapt your Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your Content as are necessary to conform and adapt that Content to any requirements or limitations of any networks, devices, services or media. You understand that your Content may be broadcast, distributed, or published, and that if you do not have the right to submit Content for such use, it may subject you to liability. KHA will not be responsible or liable for any use of your Content by KHA in accordance with this Agreement. You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to any Content that you submit.
All right, title, and interest in and to the Service (excluding Content provided by Users) are and will remain the exclusive property of KHA and its licensors. The Service is protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in this Agreement gives you a right to use the KHA name or any of the KHA trademarks, logos, domain names, and other distinctive brand features. Any feedback, comments, or suggestions you may provide regarding KHA, or the Service is entirely voluntary and we will be free to use such feedback, comments or suggestions as we see fit and without any obligation to you.
You acknowledge and agree that you shall be responsible for paying all fees due for the full term of your subscription as set forth in an applicable order form, including fees associated with any premium services, whether or not you cancel such subscription prior to the end of such term. You further acknowledge and agree that the term of your subscription shall automatically renew for additional successive terms equal to the period of your initial term, unless you provide KHA with written notice at least 30 days prior to the end of the then-current subscription term. If you cancel or suspend your subscription before the end of the then current term, (i) all fees become immediately due and payable, (ii) we reserve the right to immediately suspend access to your account, and (iii) you will not receive any refunds. KHA also reserves the right to immediately suspend your subscription if you exceed your monthly usage allocations.
Payment Information; Taxes
All information that you provide in connection with any purchase of the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You shall pay all applicable subscription fees and premium service fees, if any, including any sales, excise, service, use or other taxes now or hereafter imposed upon or required to be collected by KHA by any authority in connection with or arising from the Service and/or this Agreement, excluding taxes based upon KHA’s net income. You shall pay each invoice issued by KHA by the applicable due date and in the currency specified by KHA. Any amounts not paid when due shall bear interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less. KHA reserves the right to suspend your account for late or non-payment.
If you receive a free or unsubscribed access subscription (“Free Access Subscription”) to the Service or a beta release product (“Beta Release”), then you may use the Service or Beta Release in accordance with this Terms of Service for the period designated in the order form or otherwise by KHA. KHA may terminate or immediately suspend your Free Access Subscription at any time for any reason without liability to you or if you go above your monthly usage allocations. KHA may revoke your right to use any Beta Release and any related services at any time without liability and does not guarantee that future versions of a Beta Release will be made available under the same commercial or other terms. You acknowledge your Free Access Subscription or Beta Release may not be complete or fully functional and may contain bugs, errors, omissions and other problems. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, KHA WILL HAVE NO WARRANTY, INDEMNITY OR SUPPORT OBLIGATIONS WITH RESPECT TO FREE ACCESS SUBSCRIPTIONS OR BETA RELEASES.
Representations, Warranties, and Exclusive Remedies
Each party warrants and represents that such party has full right, power, and authority to enter into and perform this Agreement without the consent of any third party. You hereby represent, warrant, and covenant to use the Service in accordance with all applicable laws.
In connection with any Content you upload to the Service (including Content uploaded to the Service by KHA at your request), you hereby represent and warrant that (i) you have obtained all necessary rights, releases, and permissions to provide such Content to KHA, and (ii) the collection, use, and disclosure of such information by you does not violate any laws or rights of any third party, including without limitation any intellectual property rights, and is not inconsistent with the terms of any applicable privacy policies. KHA takes no responsibility and assumes no liability for any Content that you or any other User or third party provides, posts, publishes or transmits over the Service. You shall be solely responsible for Content and the consequences of using, disclosing, or transmitting it.
KHA warrants that all SDS will not be more than 24 months out of date. As your exclusive remedy for any breach of the above warranty that results in OSHA assessing a fine against you, KHA will pay to you (a) one half your monthly subscription fee, or (b) One Thousand Dollars ($1,000.00), whichever is lower, provided that (w) you have complied with this Terms of Service, (x) the SDS in question is one for which KHA is already aware, (y) KHA is unable to show documentation that we made a reasonable attempt to obtain the SDS from the manufacturer, (z) you have not received any other reimbursement from KHA for an OSHA fine during the past year.
You shall indemnify, defend, and hold harmless KHA from and against any and all third-party claims, costs, damages, liabilities, and expenses (including reasonable attorneys’ fees and costs) arising out of or in connection with any claim based on any Content (including without limitation any breach or alleged breach of your representations and warranties in Section 7).
EXCEPT IN THE MANNER PROVIDED FOR IN THIS AGREEMENT, KHA, ITS LICENSEES, AFFILIATES, AND THIRD PARTY SERVICE PROVIDERS, DISCLAIM, AND EXPRESSLY DO NOT PROVIDE ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF MERCHANT-ABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW. KHA SHALL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES AND OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE THE REASONABLE CONTROL OF KHA. KHA DOES NOT WARRANT THAT ANY CHANGES YOU MAKE TO THE CUSTOMER INFORMATION SYSTEM WILL MEET YOUR EXPECTATIONS AND IS NOT RESPONSIBLE FOR ANY DECISIONS OR ACTIONS TAKEN (OR NOT TAKEN) BY YOUR BASED UPON USE OF THE SERVICES.
Limitation of Liability
NEITHER KHA NOR ITS SUPPLIERS WILL BE LIABLE FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE. KHA’S AND ITS SUPPLIERS’ ENTIRE LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO KHA UNDER THIS AGREEMENT DURING THE THEN CURRENT SUBSCRIPTION TERM.
The parties agree that the limitations specified in this Section 10 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose. Each party acknowledges that the foregoing limitations are an essential element of the Agreement and a reasonable allocation of risk between the parties and that in the absence of such limitations the pricing and other terms set forth in this Agreement would be substantially different.
“Confidential Information” of either party will mean information disclosed to or learned by the receiving party concerning the disclosing party’s business, customers, products, proposed products, plans, inventions, processes and techniques, which is designated as “Confidential”, “Proprietary” or some similar designation or should reasonably be considered to be confidential or proprietary due to its nature or the context of its disclosure. Confidential Information does not include information that: (i) is or becomes generally known to the public through no fault or breach on the part of the receiving party; (ii) the receiving party obtains from a third party rightfully, without breach of nondisclosure obligations and without restriction on disclosure; (iii) the disclosing party regularly provides to others without restriction on disclosure; (iv) or the disclosing party has consented to being made public. For clarity, when a User requests KHA to upload Content to the Service on their behalf, the User consents to those documents being made public. Except as explicitly authorized in writing by this Agreement or otherwise, each party will: (a) not use, for its own benefit or the benefit of any third party, the other party’s Confidential Information; and (b) use all reasonable care, but in no event less care than it takes to protect its own Confidential Information of similar importance, to protect the other party’s Confidential Information from unauthorized use, disclosure and publication. Both parties acknowledge that the breach of this Section 10 could cause great or irreparable injury to the disclosing party and that pecuniary compensation would not afford adequate relief, and therefore, that upon any such unauthorized disclosure by the receiving party, the disclosing party shall be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law. Within five (5) days after termination of this Agreement, each receiving party shall destroy or deliver to the disclosing party, at the disclosing party’s option, all materials in receiving party’s possession or control that contain or disclose any Confidential Information of the disclosing party.
KHA, in its sole discretion, may terminate or suspend your account at any time if, in KHA’s sole discretion, you violate any term or provision of this Terms of Service without prior notice or liability to you. If you default in the performance of any material provision of this Terms of Service, including without limitation any payment obligations due under Section 4, then KHA may give written notice to you that if the default is not cured within ten (10) days the Agreement will be terminated. If KHA gives such notice and the default is not cured during the ten (10) day period, then the Agreement shall automatically terminate at the end of that period. Upon termination of your account, your right to use the Service will immediately cease and all amounts due shall become immediately due and payable. Sections 3, 4 (to the extent not satisfied), 6-13 shall survive any termination or expiration of this Terms of Service. Upon termination of this Terms of Service for any reason, you shall cease all use of the Service and you shall destroy and remove from all computers, hard drives, networks, and other storage media all copies of the Service and any the data, and shall so certify, if requested, to KHA that such actions have occurred.
You understand and agree that all data will be transmitted to Amazon Web Services (“AWS”) and Rackspace, which shall host the Service. The data therefore shall be stored and maintained in accordance with the applicable terms and conditions of AWS and Rackspace. KHA makes no guarantees as to the availability of AWS, Rackspace, or the Service. All sensitive information is transferred using industry standard 256-bit TLS encryption.
KHA respects the Intellectual Property Rights of others and expects Users of the Service to do the same. KHA will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, please provide us with the following information: (i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf; (ii) identification of the copyrighted work claimed to have been infringed; (iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) your contact information, including your address, telephone number, and an email address; (v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
We reserve the right to remove Content alleged to be infringing without prior notice, at our sole discretion, and without liability to you. In appropriate circumstances, KHA will also terminate a User’s account if the User is determined to be a repeat infringer. Our designated copyright agent for notice of alleged copyright infringement appearing on the Services is:
Kelleher, Helmrich & Associates, Inc.
Attn: Copyright Agent
6920 Hohman Avenue
Hammond, Indiana 46324
The provider of services is set forth herein. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you without KHA’s prior written permissions, but may be assigned by KHA without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Neither party has the ability to bind the other party to any agreements or other obligations and will not attempt to do so. KHA and you are independent contractors, and nothing in this Agreement creates any partnership, joint venture or agency relationship. As between each other, each party is fully responsible for all persons and entities it employs or retains.
You agree that: (i) the Service shall be deemed solely based in Indiana; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Indiana. This Agreement shall be governed by the internal substantive laws of the State of Indiana, without respect to its conflict of laws principles. The parties acknowledge that this Agreement evidences a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Lake County, Indiana for any actions for which we retain the right to seek injunction or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that Lake County, Indiana is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM KHA. For any dispute with KHA, you agree to first contact us and attempt to resolve the dispute with us informally. In the unlikely event that KHA has not been able to resolve a dispute it has with you after sixty (60) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunction or other equitable relief as provided below) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Lake County, Indiana, unless you and KHA agree otherwise. If you are using the Service for commercial purposes, each party will be responsible for paying any JAMS filing, administrative and arbitrator fees in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing KHA from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
Jury Trial Waiver
YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND KHA ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY.
All notices from you to KHA must be given in writing and sent by registered or certified mail (postage prepaid and return receipt requested), by hand or messenger delivery, by overnight delivery service, by facsimile with receipt confirmed, by electronic mail, to KHA’s addresses provided on the Service. Any notice or report delivered in accordance with this Section will be deemed given on the date actually delivered; provided that any notice or report deemed given or due on a Saturday, Sunday, or legal holiday will be deemed given or due on the next business day. KHA may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through conspicuous posting of such notice on our website, as determined by KHA in our sole discretion. KHA reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers. KHAis not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. We recommend that you add email@example.com to your email address book to help ensure you receive email notifications from us.
This Agreement, together with any Order Forms and amendments you may enter into with KHA in connection with the Service, shall constitute the entire agreement between you and KHA concerning the Service. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and KHA’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
You are responsible for compliance with all applicable laws and regulations, including but not limited to United States export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government.
You may use the Service only if you can form a binding contract with KHA, and only in compliance with this Agreement and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of this Agreement.
Do you have questions about this Agreement? Please reach out to us: Kelleher, Helmrich & Associates, Inc. 6920 Hohman Avenue, Hammond, Indiana 46324, firstname.lastname@example.org, (800) 274 – 4995.