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1. End Customer License Agreement
2. Master Software As A Service (SaaS) Agreement
ANNEX 1: Service Legal Agreement ANNEX 2: Sub Processor ANNEX 3: DATA Processing AddendumThis End Customer License Agreement (“License Agreement”) was executed, signed, and took effect on Customer’s execution (“Effective Date”) by and between Shift Top, Inc., a Delaware corporation with offices located at 530 5th Avenue, New York, NY 10036 (“Shift Top”) and Customer identified in the Statement of Work (“Customer”).
Customer and Shift Top shall be hereinafter individually referred to as “Party” and collectively as “Parties”.
If the Customer acquires Services (as defined below) under the terms specified herein through a Partner (as defined below), this License Agreement will take precedence over any conflicting terms in the agreement between the Customer and the Partner, insofar as the relationship between the Customer and Shift Top is concerned. Rights granted to the Customer in a separate agreement with the Partner, which are absent in this License Agreement, are applicable exclusively in the context of that Partner. Consequently, the Customer is obliged to pursue any remedies or enforcement of such rights solely with the Partner and not Shift Top.
BY SIGNING A STATEMENT OF WORK, ACCESSING, RECEIVING, AND/OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS OF THIS LICENSE AGREEMENT. IN NO EVENT MAY YOU ACCESS, RECEIVE, OR OTHERWISE USE ANY Shift Top PRODUCT OR SERVICE WITHOUT AGREEING TO THESE TERMS (OR ANOTHER AGREEMENT AGREED TO IN WRITING BY SHIFT TOP).
1. “Affiliates” refers to any entity that directly or indirectly Controls, is Controlled by, or is under common Control with another entity, as long as such Control is maintained. For the purposes of this definition, “Control” means having beneficial ownership of 50% or more of the voting power or equity in an entity.
2. “Authorized User” refers to the individuals designated by the Customer who are permitted to access and use the Services.
3. “Customer” means the Customer identified in the SOW.
4. “Customer Data” refers to any data or images submitted, uploaded, imported, integrated, or otherwise communicated by Customer to Shift Top.
5. “Facility” means the sites/facilities/plants of the Customer in which Services are to be used by Customer.
6. “Fees” has the meaning set forth in Section 5.1.
7. “License Agreement” refers collectively to this End Customer License Agreement and any attachments hereto.
8. “Partner” refers to a Shift Top-authorized partner, reseller, distributor, or marketplace.
9. “Partner Contract” refers to the agreement between Shift Top and Partner that authorizes the Partner to resell access to, or provide access to, the Services.
10. “Services” has the meaning defined in Section 2.
11. “Service Data” refers to any statistical and/or benchmark data collected by Shift Top from Customer’s use of the Services, including image-related data, for the purpose of training Shift Top’s algorithms.
12. “Service Software” refers to the AI-powered image processing workplace Environment Health Safety (EHS) and security software application developed and owned by Shift Top, including any third-party software, as well as all new versions, updates, revisions, improvements, and modifications thereof, that Shift Top provides remote access to and use of as part of the Services.
13. “Subscription” refers to a non-exclusive, personal, non-transferable right to use the Services and the output of the Services in accordance with this License Agreement and the Statement of Work (SOW) within the Customer’s relevant facilities, as detailed in the SOW.
14. “Subscription Start Date” refers to the date on which the Services commence, as specified in the relevant Statement of Work (SOW).
15. “Subscription Term” refers to the initial term during which the Services can be used in a Facility, as outlined in this License Agreement and specified in the relevant Statement of Work (SOW).
16. “Statement of Work” or “SOW” refers to the document mutually agreed upon in writing by the Partner and Customer, issued in accordance with this License Agreement, which describes, among other things, the Services to be made available, the Fees to be paid, the payment terms, and the Subscription Term. Customer acknowledges that the Partner Contract requires the Partner to incorporate this License Agreement into all SOWs, and Customer expressly agrees that Shift Top shall have the benefit of and right to enforce this License Agreement against Customer. In the event that any provision of this License Agreement is deemed to conflict with a provision of a SOW or other agreement between Customer and Partner regarding the Services or other subject matter of this License Agreement, the provision of this License Agreement shall apply for Customer and Shift Top, unless Shift Top and Customer agree otherwise in writing.
This License Agreement sets out the principles regarding the provision of services detailed in the related Statement of Work (SOW) via the Service Software (“Services”) to the Customer by Shift Top, as well as the rights and obligations of the Parties in this regard.
This License Agreement enters into force on the Effective Date and remains in effect until the expiration of the last Subscription Term in all active Statements of Work (SOWs) issued under this License Agreement (“Term of the License Agreement”). The term of the Services will commence on the Subscription Start Date set forth in the SOW and shall continue for the Subscription Term identified therein, along with any renewal thereof, unless earlier terminated in accordance with the terms of this License Agreement.
4.1. License Agreement Shift Top hereby grants Customer a limited, non-exclusive, non-sublicensable, non-transferable, non-assignable, revocable, worldwide license to access and utilize the Services pursuant to the terms of this License Agreement and the applicable Statement of Work (SOW).
4.2. Reservation of Rights Shift Top and its licensors own and retain all right, title, and interest, including all intellectual property rights, in and to the Service Software, Services, and Service Data (collectively “Shift Top Intellectual Property”), including any improvements, modifications, and enhancements. Shift Top expends significant resources gathering, assembling, and compiling the Service Data, and such Service Data constitutes an original compilation protected by applicable copyright laws. Except for the rights expressly granted in this License Agreement, Customer shall acquire no other rights, express or implied, in or to the Shift Top Intellectual Property, and all rights not expressly provided to Customer hereunder are reserved by Shift Top and its licensors. If Customer chooses, in its sole discretion, to provide Feedback (defined below) to Shift Top, nothing in this License Agreement or in the parties’ dealings arising out of or related to this License Agreement will restrict Shift Top’s right to use, profit from, disclose, publish, or otherwise exploit Feedback, without compensating or crediting Customer or the individual providing such Feedback. Customer’s Confidential Information shall not include Feedback, to the extent that such Feedback relates exclusively to Shift Top’s products or services. “Feedback” means any feedback (e.g., questions, comments, suggestions, or ideas), regarding the Service Software, Services or any other Shift Top product or service that Customer provides to Shift Top.
5.1. Fees In consideration of the rights granted to Customer under this License Agreement, Customer shall pay the fees set forth in the applicable SOW (“Fees”).
5.2. Payment Terms Payment terms shall be as set forth in the SOW.
6.1. Term and Renewal The Term of this License Agreement shall commence on the Effective Date and continue for the Subscription Term set forth in the applicable SOW unless terminated earlier as permitted herein.
6.2. Termination for Convenience Either party may terminate this License Agreement at any time for any reason by providing 30 days’ written notice.
7.1. No Warranty Except as expressly set forth herein, Shift Top makes no warranties, express or implied, and specifically disclaims any implied warranties of merchantability or fitness for a particular purpose.
7.2. Customer’s Warranty Customer represents and warrants that it has the right and authority to enter into this License Agreement.
In no event shall either party be liable for any consequential, incidental, indirect, special, or punitive damages, even if advised of the possibility of such damages, whether in an action of contract, negligence, or other tort.
Both parties agree to maintain the confidentiality of the Confidential Information of the other party and shall not disclose it to any third party without prior written consent.
10.1. Governing Law This License Agreement shall be governed by and construed in accordance with the laws of the State of New York, without regard to its conflict of laws principles.
10.2. Entire Agreement This License Agreement, together with any SOWs, constitutes the entire agreement between the parties and supersedes any prior agreements or understandings.
10.3. Amendments Any amendment or modification of this License Agreement must be in writing and signed by both parties.
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