By using the Active Food Safety, LLC EmergiProtect© mobile and / or web services that food service businesses can use to determine how to handle and respond to emergencies related to prevention of foodborne, allergic, and other food safety issues (including all updates and upgrades) (“Services”), you are agreeing to be bound by the terms and conditions that appear in this end user license agreement below (the “License”).
References to “EmergiProtect©”, “we” and “us” refer to Active Food Safety, LLC and include our affiliates. The Services are owned by Active Food Safety LLC. Reference to the Services include the software (the “Application”) installed on a Device (as hereinafter defined) used to make decisions related to food safety questions, and other information used in connection with the Services. Reference to “you” refers to the owner or lessee of the Device. You are permitted to use the Services under license from us subject to compliance with these terms and conditions of use. The Services may also include materials owned by third parties by virtue of a license, grant or some other form of agreement between the third party and EmergiProtect©.
In consideration of the fee you pay for the Application (the “License Fee”), the Services are licensed, not sold, to you for use only under the terms of this Agreement. EmergiProtect©, as the licensor, reserves all rights not expressly granted to you. This license granted to you for the Services by EmergiProtect© includes to a non-exclusive, non-transferable license to use the Application on any computer, mobile or other device you own or lease. You may not rent, lease, lend, sell, redistribute or sublicense the Services. You may not copy (except as expressly permitted by this license), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Services, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Services). Any attempt to do so is a violation of the rights of EmergiProtect© and its licensors. If you breach this restriction, you may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by EmergiProtect that replace and/or supplement the original Service, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
You do not acquire under this Agreement any intellectual property or other proprietary rights, including without limitation, any patents, inventions, improvements, designs, trademarks, including any applications for same, copyright, rights in any confidential information or trade-secrets, in or relating in any way to the Service. Any grants not expressly granted herein are reserved.
Except where otherwise specified, the contents of the Service are copyright (c) 2017 Public Health Innovations LLC with all rights reserved. The contents of the Service are subject to protection under U.S. and foreign copyright laws. You are not permitted to use the copyrighted content outside of the normal functions of the Service without the prior written consent of EmergiProtect©.
The use of mobile devices while operating motor vehicles is subject to generally applicable laws governing transportation, occupational health and safety, and other rules and regulations, and may result in charges, citations, fines or other legal proceedings. Such use may also expose you to risk of accidents or death. The Device should be used only to run the Application and should not be used while operating a vehicle for any other purpose. We do not assume any liability or responsibility under this License or otherwise for any damages, losses or other claims resulting from use of the Services while driving a vehicle.
You agree that EmergiProtect© may collect and use technical data and related information, including but not limited to technical information about your restaurant business that is gathered to facilitate the provision of services to be provided hereunder as well as software updates, product support and other services to you and other users of the Services. EmergiProtect© may use this information, as long as it is in a form that does not personally identify you or your business, to improve its products or to provide services or technologies to you and other users of the Services. You also agree that you shall be responsible for notifying and obtaining any consent from your employees regarding the use of data collected by the Services, including location data as may be required by applicable laws.
EmergiProtect© is not responsible for your mobile phone or device or the mobile network, which are each provided by your mobile network provider under your separate contracts with them. You will be responsible for charges from the mobile network provider for the data services you use to access the Services. You are responsible for any loss or damage to any Device provided to you in connection with the License caused by you or your employees.
EmergiProtect© and the EmergiProtect© logo are copyrights of Public Health Innovations, LLC. These copyrights together with any other owned by Public Health Innovations, LLC may not be reproduced, used, modified or distributed without prior permission.
While EmergiProtect© does its best to ensure the optimum performance of the Services, you agree that you use the Services and rely on content contained in the Services at your own risk. EmergiProtect© assumes no legal duty regarding the training or conduct of you or your employees, the operations of your restaurant business, or any customer, invitee, or other third party who purchases your food or visits your business premises. EmergiProtect© may suspend the availability of the Services at any time to update the Services or for any other technical reasons.
EmergiProtect© does not give any warranties in respect of the network, content, software or services used in conjunction with the Services. In particular, the Services are provided on an “as is”, “with all faults” and “as available” basis, with no representation as to accuracy, availability or usability. To the extent allowed by applicable law, EmergiProtect© hereby disclaims all warranties, conditions or duties of every nature whatsoever (except any duties of good faith), including without limitation, any implied warranties of merchantability or of fitness for a particular purpose, any express or statutory warranties, and any warranties or duties regarding accuracy, timeliness, completeness, performance, lack or negligence or of workmanlike effort. Additionally, EmergiProtect© makes no warranty that the Services are free from infection by viruses or anything else that has contaminating or destructive properties.
To the full extent allowed by applicable law, you agree that EmergiProtect© will not be liable to you and / or any third party for any consequential or incidental damages (including but not limited to lost profits, loss of privacy or for failure to meet any duty including but not limited to any duty of good faith, lack or negligence or lack of workmanlike effort) or for any other indirect, special, or punitive damages whatsoever that arise out of or are related to the Services or their content or to any breach of the terms of this License by EmergiProtect©, even if EmergiProtect© has been advised of the possibility of such damages and even in the event of fault, tort (including negligence) or strict liability.
You agree that your only recovery for any damages that you incur, and your exclusive remedy, shall be limited to the direct damages you actually incur in reasonable reliance on the Services up to a limit of the following, at EmergiProtect©’s election: (1) a refund of the amount you paid to purchase EmergiProtect© (if any) in total during the year in which the damage is first incurred, less any reasonable allowance for complying services, or (2) correction or replacement of the Services. All limitations will apply to all legal and equitable theories.
You agree to indemnify and hold EmergiProtect© (including its affiliates, and their respective directors, officers, agents, employees, partners and other licensees) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your use of the Services, your connection to the Services, your violation of this License, the conduct of your business, an act or omission that occurred on your business premises, or your violation of any rights of another.
The Services may contain links to other websites and applications provided by independent third parties (“Third Party sites”). Where possible, EmergiProtect© will make clear where such links are being made, though Third Party sites may be co-branded with EmergiProtect© and so include EmergiProtect© trademarks. EmergiProtect© is not responsible for the availability or content of Third Party sites and will not be a party to, or in any way responsible for, any transaction concerning goods or services available from such Third Party sites.
Due to its policy of updating and improving the Services, EmergiProtect© may wish to change these terms (including those relating to your use of the Service). EmergiProtect© reserves the right to modify these terms through the update of the License without notice at any time, provided, however in the event that an update or improvement is anticipated to result in the Service not being available during regular business hours (8 am to 6 pm ET, Monday-Friday), EmergiProtect© will use its best efforts to give you advance notice of such service disruptions. It is therefore important that you read this document regularly to ensure you are updated as to any changes. To the extent that such changes are reflected in any modification to the License published with any upgrade or update to the Services you will be deemed to have accepted these modified terms at the time of acceptance and use of such update or upgrade to the Services.
The term of this License is for one year and thereafter will be automatically renewed for a successive one-year period unless either party provides written notice of intent not to renew not less than sixty (60) days prior to the end of the then current term.
Upon your breach of this License, this Agreement shall terminate immediately and you will immediately cease use of the Services.
Upon expiration or termination of any license, you will pay all fees incurred up to the date of termination, and cease use of the Services.
The Services may contain, incorporate or integrate with external providers of advertising, sponsorship and other digital media assets. The providers and publishers of such content are responsible for ensuring that material submitted for inclusion on the network complies with international and national law. EmergiProtect© will not be responsible to you or any other person for any claim relating to the content of or for any error or inaccuracy in any digital material displayed within or in association with the Services.
Any information you provide to EmergiProtect© about you or your business will only be used by EmergiProtect© in accordance with our privacy policy. However, we have no ability to control and assume no responsibility or liability for the use of information where our users have elected to provide such information to third parties through our Services. Reference should be made to the terms and conditions of use at their sites.
You may not use or otherwise export or re-export the Service except as authorized by United States law and the laws of the jurisdiction in which the Service was obtained. In particular, but without limitation, the Service may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Service, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
The Service and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights are reserved under the copyright laws of the United States.
The laws of the State of Georgia, excluding its conflicts of law rules, govern this license and your use of the Service. Your use of the Service may also be subject to other local, state, national, or international laws. The sole and exclusive jurisdiction and venue for actions related to the subject matter hereof shall be the state and federal courts located in Atlanta, Georgia. Both you and EmergiProtect© consent to the jurisdiction of such courts and agree that process may be served in the manner provided herein for giving of notices or otherwise as allowed by Georgia state or federal law.
You may not assign, sub-license or otherwise transfer any of your rights under this License or your rights to access and use the Services. EmergiProtect© may assign this License upon notice to you.
If any provision of this License is found to be invalid by any court having competent jurisdiction, the invalidity of that provision will not affect the validity of the remaining provisions of this License, which shall remain in full force and effect.
Any waiver of the provisions of this License by EmergiProtect© must be in writing. Failure by either party to exercise any right or remedy under this License does not constitute a waiver of that right or remedy.
Headings in these terms are for convenience only and will have no legal meaning or effect.
In accepting and using the License, you also agree that you will not (a) send or otherwise post unauthorized commercial communications (such as spam); (b) collect users’ content or information, or otherwise access the Services, using automated means (such as harvesting bots, robots, spiders, or scrapers) without our permission; (c) engage in unlawful multi-level marketing, such as a pyramid scheme, on the Services; (d) upload viruses or other malicious code; (e) solicit login information or access an account belonging to someone else; (f) bully, intimidate, or harass any user; (g) post content that: is hateful, threatening, or pornographic; incites violence; or contains nudity or graphic or gratuitous violence; (h) violate our guidelines and all applicable laws if you publicize or offer any contest, giveaway, or sweepstakes (“promotion”) on the Services; (i) use the Services to do anything unlawful, misleading, malicious, or discriminatory; (j) do anything that could disable, overburden, or impair the proper working of the Services, such as a denial of service attack; (k) reverse-engineer, replicate, copy or otherwise misappropriate the application or the service, whether or not for value or gain, or attempt to do so; (l) facilitate or encourage any violations of these terms of use by any other person.
You hereby agree that if the terms of this Agreement are not specifically enforced, EmergiProtect© will be irreparably damaged, and therefore you agree that EmergiProtect© shall be entitled, without bond, other security, or proof of damages, to appropriate equitable remedies with respect any of this Agreement, in addition to any other available remedies.
All notices or other communications required to be given hereunder shall be in writing and delivered either personally or by U.S. mail, certified, return receipt requested, postage prepaid, and addressed as set forth below or as otherwise requested by the receiving Party. Notices delivered personally shall be effective upon delivery and notices delivered by mail shall be effective upon their receipt by the Party to whom they are addressed.
Active Food Safety, LLC
5563 Cape Aqua Drive
Sarasota, Florida 34242
Except as otherwise provided, herein, this Agreement constitutes the entire agreement between the parties respecting the Services, and there are no provisions, representations or collateral agreements between the parties other than as set out in this Agreement. EmergiProtect© reserves the right to make changes to this Agreement by providing you with notice of the change by including it in an update to the Service or by any other reasonable method. If you continue to use the Service after notice of the change has been given, you shall be deemed to have accepted this change.
