Product Terms of Service and Use
THESE TERMS OF SUPPORT (THE “Agreement“) CONSTITUTE A BINDING AGREEMENT BETWEEN SEALIGHTS TECHNOLOGIES LTD.(“SeaLights”) ANDCUSTOMER, THE ENTITY EXECUTING THE CORRESPONDING ORDER FORM (THE “Customer“), WHICH ORDER FORM, AS MAY BE AMENDED FROM TIME TO TIME,IS HEREBY INCORPORATED INTO THIS AGREEMENT BY REFERENCE(THE “Order Form”).
SeaLights and Customer may be collectively referred to herein as the “Parties“, and each individually as a “Party”.
- DEFINITIONS AND INTERPRETATION.
This Agreement contains a range of capitalized terms defined in this Section 1 and elsewhere. The section and subsection headings in this Agreement are for convenience of reading only and shall not be used or relied upon for interpretive purposes.
“Authorized User” means a Customer employee or individual contractor authorized by Customer to access and/or use the Software under the Account in accordance herewith.
“Documentation” means any manuals, specifications, and similar documentation related to the Software, which accompanies the Software, or which otherwise are provided directly to Customer by SeaLights, which Documentation may change from time to time.
“Software” means the SeaLights software solution (as stated in the Order Form) made available to Customer, in two parts (a) a hosted, cloud-based service basis software, and (b) on-prem listeners collecting metadata from the build and the application under testpart of the software connecting to the hosted part of the software.
Subject to the terms and conditions of this Agreement, SeaLights grants Customer a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable license, during the Term (defined below), to permit its Authorized Users to access (and for distributed components of the Software, download and install) and use the Software in object code form only, according to the number of Application Licenses purchased in the Order Form and solely for Customer’s own benefit and its internal business use (the “License”). For the avoidance of doubt, the Software and any copies of the Software are only licensed under this Agreement, and no title in or to the Software or such copies passes to Customer. Except for the License, Customer is granted no other right in or to the Software, whether by implied license, estoppel, patent exhaustion, an operation of law, or otherwise. Customer shall be primarily responsible and liable for the acts and omissions of its Authorized Users.The Annual Feesare based on the total lines of code actually used by Customer with the Software as scanned by SeaLight. Each License is for use according to use limitation set forth in the Order Form. SeaLights will provide verification of the number of Licenses via its scanning technology and Customer will be charged accordingly in case of any use beyond the already paid for Licenses.
- LICENSE RESTRICTIONS
4.1.In addition to the specific use limitations set forth in Section 3 above, Customer shall not (and shall procure that each Authorized User does not) do any of the following: (a) copy or reproduce the Software; (b) sell, assign, lease, lend, rent, issue, sublicense, make available, or otherwise distribute to any third party, or publicly perform, display or communicate, the Software, or otherwise use the Software in a time-sharing, outsourcing, or service bureau environment; (c) modify, alter, adapt, arrange, or translate the Software, (d) decompile, disassemble, reverse engineer, decrypt, or otherwise attempt to discover the source code or non-literal aspects of, the Software; (e) remove, alter, or conceal, in whole or in part, any copyright, trademark, or other proprietary rights notice or legend displayed or contained on or in the Software; (f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software, such as features that restrict or monitor use of the Software; (g) make a derivative work of the Software, or use the Software to develop any service or product that is the same as (or substantially similar to) the Software; (h) disclose to the public the results of any internal performance testing or benchmarking studies of or about the Software; (i) publish or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; (j) misrepresent the performance function and/or capacity of the Software, or otherwise (whether by act or omission) adversely affect the goodwill or reputation of SeaLights, its licensors and/or suppliers; (k) take any action that imposes or may impose (as determined in SeaLights’ sole discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Software, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure; and/or (l) use the Software to infringe, misappropriate or violate any third party’s intellectual property rights, moral rights, privacy or other personal right, or any applicable law or regulation.
4.2.Customer acknowledges that the Software contains information and materials that are confidential and proprietary to SeaLights (and may even constitute SeaLights’ trade secrets), and therefore Customer agrees that a breach or threatened breach of this Agreement and the License Restrictions may cause SeaLights to suffer irreparable harm or damage for which monetary damages will be inadequate, and accordingly, if SeaLights seeks an injunction, specific performance, or other equitable relief to enforce any provision under this Section, SeaLights shall not be required to post a bond or to prove the likelihood of irreparable harm.
- CUSTOMER DATA AND STORAGE.
5.1. Customer alone shall be responsible and liable for the maintenance and backup of all Customer Data. “Customer Data” means any Customer content, data, or other information that is uploaded to, stored on, or otherwise processed by the Software, as well as any personal data provided to Sealights in connection with the provision of services related to the Software. Customer hereby grants SeaLights a worldwide, non-exclusive, royalty-free, fully-paid, license to make use of the Customer Data for purpose of performance of the services herein as an integral part of the Software including to copy, reproduce, modify, alter, adapt, arrange, translate, create derivative works of, and otherwise use Customer Data to perform their respective obligations under this Agreement(the “Customer Data License“). Customer hereby represents and warrants that: (a) Customer Data will not infringe, misappropriate or violate any third party’s intellectual property rights, moral rights, privacy or other personal rights, or any applicable law or regulation; and (b) Customer has, and will maintain, all licenses, consents, permissions and approvals required to grant the Customer Data License.
5.2.Customer hereby acknowledges and agrees that to the extent Customer providesSeaLights with Customer Data which includes personal data (as defined under applicable law), SeaLights shall act as a data processor and will use any personal data supplied or disclosed to it by Customer only in accordance with Customer’s instructions and to perform the services under this Agreement. SeaLights will implement appropriate technical and organizational measures to protect the data provided by Customer against unauthorized or unlawful processing and against accidental loss, destruction, damage, alteration or disclosure.
5.3. To the extent that Customer is subject to the GDPR, it is hereby agree that it is Customer’s responsibility toengage SeaLightswith a Data Processing Agreement (“DPA”). In the event Customer fails to comply with any data protection or privacy law or regulation, the GDPR and/or any provision of the DPA (to the extent executed), then: (a) to the maximum extent permitted by law, Customer shall be fully liable for any such breach, violation, infringement and/or processing of personal data without a DPA by SeaLights and SeaLights’s affiliates and subsidiaries (including, without limitation, their employees, officers, directors, subcontractors and agents); and (b) in the event of any claim of any kind related to any such breach, violation or infringement and/or any claim related to processing of personal data without a DPA, Customer shall defend, hold harmless and indemnify SeaLights and SeaLights’ affiliates and subsidiaries (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees.
- THIRD PARTY SOFTWARE.
The Software may include third-party software components that are subject to open source and/or pass-through commercial licenses and/or notices (“Third Party Software” and “Third Party Software Terms and Notices“, respectively). SeaLights may make available in the Documentation a list (or another index) of such Third Party Software and Third Party Software Terms and Notices. Customer acknowledges that its use of the Software is also governed by such Third Party Software Terms and Notices and that to the extent of any conflict between this Agreement and any Third Party Software Terms and Notices, the latter shall control. Any covenants, representations, warranties, guarantees, conditions, indemnities or other commitments made by SeaLights in this Agreement concerning the Software are made by SeaLights and not by any authors, licensors, or suppliers of, or contributors to, such Third Party Software. Notwithstanding the foregoing sentence or anything in this Agreement to the contrary, SeaLights does not make any representation, warranty, guarantee, or condition, and does not undertake any defense or indemnification, with respect to any Third Party Software.
- SUPPORT AND UPDATES.
SeaLights offers support and maintenance services for the Software agreed on in the Order Form and as further detailed in the SeaLights SLA, all subject to Sealights then current support matrix published at https://www.sealights.io/sealights-support-matrix/, as may be updated by Sealights from time to time.
Customer’s access to and use of the Software is subject to Customer’s payment in full of the annual subscription fees set forth in the Order Form(the “Fees”). The Fees for any Renewal Term will be as determined in the Order Form(or subsequent renewal). All Fees are non-refundable, exclusive of all taxes, levies, duties, bank fees and commissions in connection with the transfer of Customer’s payment (collectively “Transaction Costs”), all of which are Customer’s responsibility. Fees are not subject to offset or reduction because of any Transaction Costs incurred by Customer or otherwise due as a result of this Agreement. The payment terms shall be set forth in the Order Form; if the Order Formomits payment terms, then payment of Fees shall be made within forty-five (45) days of Customer’s receipt of SeaLights’ invoice. Any Fees (except amounts disputed in good faith) not received from Customer by the due date shall accrue interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
Use of the License beyond the limitation of use stated in section 3 regarding the number of App Repos and lines of code in each App Repo will encounter additional fees that Customer will be required to pay. SeaLights will provide verification of the number of Licenses actually used according to the number of App Repos and lines of code the Software has been used for via its scanning technology.
SeaLights will relate solely to Customer in Customer’s headquarters per the address in this Agreement between the parties ,as the user of the Licenses and any sales or use tax obligations arising from the extension of such License to Customer’s employees, affiliates, third party contractors and consultants which may be located in multiple states or countries, will be the sole obligation of Customer to collect and remit to the relevant tax authorities, unless Customer upon approval of the Order Form, provides SeaLights with a detailed list of users, their usage percentage of the overall contract and their corresponding state or country locations, in which case SeaLights will add the applicable tax to the Order Form as needed. In no event shall SeaLights be required to pay any tax owed by Customer, and Customer shall remit to SeaLights any such payment, as well as the payment of any fees, penalties or late charges related thereto which SeaLights may be required to pay, as a result of any determination in connection with any contest with taxing authorities. Customer shall pay such amount within twenty-five (25) calendar days of receipt by Customer of an invoice from SeaLights.
This Agreement commences on the Effective Date and unless terminated in accordance herewith, will remain in full force and effect for the initial subscription term stated in the Order Form (“Initial Term“), following which the subscription term shall automatically renew for additional 1 year subscription terms, subject to full payment of applicable Fees in the applicable renewed Order Form (each, a “Renewal Term” and together with the Initial Term, the “Term“) unless either Party notifies the other Party of its request to not have the Agreement renewed not less than ninety (90) days prior to the end of the then-current term.
Notwithstanding Section 9(Term):
10.1. Termination by Customer for Convenience. Customer may terminate this Agreement, subject to Section 8(Fees)by providing SeaLightsten (10) days’ prior written notice email@example.com. Customer’s sole remedy in the event Customer wishes to terminate this Agreement before expiration of the Term, objects to any provision of this Agreement or becomes dissatisfied with the Software, is to terminate this Agreement in accordance with this subsection, with no right for reimbursement or refund of any prepaid Fees, including for any unused subscription Term.
10.2. Termination for Material Breach. Either Partyreserves the right toimmediately terminate this Agreement, and accordingly SeaLights may modify, suspend or discontinue Customer’s access to and use of the Software (or any part thereof), in the event of a material breach of this Agreement,subject to written notice to the breaching Party by the non breaching Party and, if such breach was curable, subject to the breaching Party failingto cure such breach within five (5) days of written notice from non breaching Party.
- CONSEQUENCES OF TERMINATION; SURVIVAL.
11.1.Upon termination of this Agreement: (a) the License will automatically terminate, the Account will be closed; (b) Customer shall immediately cease all access to and use of the Software and Documentation; and (c) Customer shall (unless directed otherwise by SeaLights in writing) promptly uninstall and permanently delete any and all copies of the Software installed on Customer’s systems or devices, and, as directed in writing by SeaLights, return, permanently delete, or destroy any other information or materials that are proprietary to SeaLights. Thereafter, Customer shall certify to SeaLights in writing that Customer has complied with its obligations in this Section. Following termination of this Agreement, SeaLights may (but shall not be obligated to) offer Customer an opportunity to download or migrate certain Customer Data.
11.2.Termination of this Agreement shall not affect any right or liability accrued by either Party as of the effective date of termination. Any provision in this Agreement that is stated to survive termination, shall survive, as will Sections 11(Consequences of Termination; Survival) through 17(General) inclusive.
Customer hereby acknowledges that the Software and Documentation are or may be protected by laws, treaties, and conventions governing Intellectual Property. Any rights not expressly granted herein are hereby reserved by SeaLights and its licensors and suppliers. SeaLights and/or its licensors and suppliers, are the sole and exclusive owners of all Intellectual Property Rights in and to the Software and Documentation.
- DISCLAIMER OF WARRANTIES.
THE SOFTWARE, DOCUMENTATION, AS WELL AS ANY OTHER ITEMS PROVIDED OR MADE AVAILABLE BY SEALIGHTS, ARE PROVIDED AND MADE AVAILABLE TO CUSTOMER ON AN “AS IS” AND “AS AVAILABLE” BASIS AND WITH ALL FAULTS, WITHOUT ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION OF ANY KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY OF SERVICE, NON-INFRINGEMENT OTHER THAN AS SPECIFICALLY STATED IN SECTION 14BELOW), REGARDING LATENT DEFECTS, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR DEALING, OR USAGE OF TRADE, ALL OF WHICH ARE HEREBY DISCLAIMED BY SEALIGHTS AND ITS LICENSORS AND SUPPLIERS.
FOR THOSE CUSTOMERS THAT CHOOSE TO LICENSE THE TEST IMPACT ANALYTICS SOFTWARE (”TIA”) IT IS MADE CLEAR THAT RECOMMENDED TESTING SHOWN BY TIA SOFTWARE ARE A RECOMMENDATION ONLY BASED ON DATA ANALYTICS OF CUSTOMER SOFTWARE AND ACTIONS AND USING SUCH RECOMMENDATIONS ONLY WITHOUT RUNNING FULL TESTING HAS AN INHERENT RISK OF MISSING CRUCIAL ISSUES THAT MAY IMPAIR OF EFFECT CUSTOMER PRODUCT. WHILE SEALIGHTS DOES ALL IN ITS EFFORT TO MAKE SUCH RECOMMENDATIONS AS FULL PROOF AS POSSIBLE IT CANNOT BE HELD LIABLE FOR ANY ISSUES MISSED BY RUNNING SUCH LIMITED TESTING. THE FULL CHOICE AND RESPONSIBILITY OF WHICH OF THE RECOMMENDED TESTS TO RUN IS ON THE CUSTOMER AND CUSTOMER SHALL BARE FULL, SOLE AND EXCLUSIVE LIABILITY FOR ANY OF THE TESTS RUN OR ANY OF THE TESTS CUSTOMER CHOOSES NOT TO RUN AND ANY ISSUES THAT MAY COME UP FROM OR BE RELATED TO THE CHOICES MADE BY THE CUSTOMER. TIA TESTS ARE A RECOMMENDATION ONLY AND SEALIGHTS ALWAYS RECOMMENDS AS ADDED PRECAUTION, EVEN IF CHOOSING THE TIA RECOMMENDED TESTS, TO RUN FULL TESTING AS WELL TO ENSURE RECEIPT OF FULL ANALYTICS.
SeaLights agree to indemnify, defend and hold harmless Customer, its managers, directors, shareholders, employees, sub-contractors, agents and anyone acting on their behalf, at its own expense, from and against any damages, loss, costs, expenses and payments, including reasonable attorney’s fees and legal expenses, subject to final court ruling, resulting from infringement of any third party intellectual property rights through use of the Software strictly in accordance with the Documentation and subject to the terms and conditions of this Agreement, subject to SeaLights being given prompt notice of such claim and is given information, reasonable assistance and sole authority to defend or settle the claim. In addition, to the extent that SeaLights believes that the Software may infringe third party rights, SeaLights shall have the right at its sole option and expense to (i) obtain for Customer the right to continue using the Software, (ii) replace or modify the Software so that it becomes non-infringing while giving substantially equivalent performance or, (iii) if such remedies are not reasonably available, require the return of the Software, and, if Customer’s use of the Software is terminated, provide Customer with a pro-rata refund of the Fees paid for such Software for the term following such date of termination.
SeaLights will have no responsibility for any indemnification under this section due to any of the following circumstances (i) the Software has been modified or damaged in any manner by any person or entity other than SeaLights; (ii) the Software has been used outside of the scope of the license or rights of use granted under this Agreement; (iii) any failure of Customer computer hardware, Customer computer operating system and/or third party software utilized by Customer; (iv) the Software has been installed or operated other than in accordance with SeaLights Documentation, including but not limited to, on computer hardware, or operating systems other than for which the Software was designed as identified in the Documentation.
- LIMITATION OF LIABILITY
15.1.IN NO EVENT WILL EITHER PARTYBE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. EXCEPT WITH RESPECT TO (A) CUSTOMER BREACH OF INTELLECTUAL PROPERTY RIGHTS; (B) GROSS NEGLIGENCE; (C) WILLFUL MISCONDUCT; AND (D) BREACH OF CONFIDENTIALITY OBLIGATION, THE COMBINED AGGREGATE LIABILITY OF EITHER PARTYUNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER IN THE 12 MONTHS PRECEDING THE CLAIM.
15.2.THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) EVEN IF EITHER PARTYHAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY).
- GOVERNING LAW AND JURISDICTION
16.1.This Agreement shall be governed by, and construed in accordance with, the laws of the State of New York, USA without regard to any conflicts of laws rules or principles. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. Any claim, dispute or controversy under, or otherwise in connection with, this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in New York County, New York, and Customer hereby irrevocably and unconditionally submits to the personal jurisdiction of such courts and waives any jurisdictional, improper venue, inconvenient forum, or other objections to such jurisdiction and venue. Furthermore, Customer:
(a) agrees that any proceedings to resolve or litigate any claim, dispute or controversy will be conducted solely on an individual basis (and not in any class action or class-wide proceeding), and that Customer may initiate such proceedings only on its own behalf;
(b) hereby irrevocably and unconditionally waives the right to litigate such claims, disputes, or controversies in court before a jury; and
(c) agrees not to participate in claims, disputes, or controversies brought in an attorney general or representative capacity, or in consolidated claims, disputes, or controversies involving another person’s Account.
16.2. Notwithstanding anything in this Agreement to the contrary, either Partymay seek injunctive relief, specific performance, and/or other equitable relief in any court worldwide that has competent jurisdiction.
17.1. Entire Agreement. This Agreement (together with the Order Form), as may be updated represents the entire agreement of the Parties with respect to the subject matter hereof, and supersedes and replaces any and all prior and contemporaneous oral or written understandings and statements by the Parties with respect to such subject matter. Any amendment to this Agreement must be in a mutually agreed writing signed by both Parties.
17.2. Assignment. Neither Party may assign or transfer this Agreement in whole or in part, nor any of the rights hereunder, without the prior written consent of the other Party, except that either Party may assign this Agreement to an affiliate or a successor to its business in connection with a change of control, merger, acquisition or sale of all or a substantial portion of its assets relating to the subject matter hereof. Except as permitted under this Section 17.2,any prohibited assignment shall be null and void.
17.3. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then: (a) the remaining provisions of this Agreement shall remain in full force and effect; and (b) such affected provision shall be ineffective solely as to such jurisdiction (and only to the extent and for the duration of such invalidity, illegality, or unenforceability), and shall be substituted (in respect of such jurisdiction) with a valid, legal, and enforceable provision that most closely approximates the original legal intent and economic impact of such provision.
17.4. Remedies. Except as stated otherwise in this Agreement, no right or remedy conferred upon or reserved by any Party under this Agreement is intended to be, or shall be deemed, exclusive of any other right or remedy under this Agreement, at law or in equity, but shall be cumulative of such other rights and remedies.
17.5. Waiver. No failure or delay on the part of any Party hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing (for waivers by Customer, emails will be acceptable; for waivers by SeaLights, the writing must be duly signed by SeaLights), and shall be valid only in the specific instance in which given.
17.6. Relationship. The relationship of the Parties is solely that of independent contractors. Nothing in this Agreement shall be deemed to create any employment, fiduciary, joint venture, agency or other relationship between the Parties.
17.7. Publicity. SeaLights may use Customer’s name and logo on the SeaLights website and in its promotional materials to state that Customer is a customer of SeaLights and/or a Software user. Customer agrees to serve as a reference customer of SeaLights and will cooperate with SeaLights’ reasonable marketing and reference requests.
17.8. Notices. Customer agrees that SeaLights may send Customer notices by email, via the Account, by regular mail, and/or via postings on or through Software. Except as stated otherwise in this Agreement or required by law or regulation applicable to Customer, Customer agrees to send all notices to SeaLights, to firstname.lastname@example.org.
17.9. No Third Party Beneficiaries. Except as otherwise expressly provided in this Agreement (for example, SeaLights Indemnitees), there shall be no third-party beneficiaries to this Agreement.
17.10. U.S. Government Rights. The Software is “commercial computer software” and the Documentation is “commercial computer software documentation,” pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. If Customer is an agency, department, employee or other entity of the United States Government, then Customer’s access to and use of the Software and/or the Documentation shall be subject solely to the terms and conditions of this Agreement.
17.11. Legal Compliance. Customer agrees to use the Software and Documentation in compliance with all laws and regulations applicable to Customer. Without limiting the generality of the foregoing sentence, Customer must not use or otherwise export or re-export any Software or Documentation in violation of any Export Control Laws. “Export Control Laws” means all export and re-export control laws and regulations applicable to Customer, as well as the United States’ Export Administration Regulations (EAR) maintained by the US Department of Commerce, trade and economic sanctions maintained by the US Treasury Department’s Office of Foreign Assets Control, and the International Traffic in Arms Regulations (ITAR) maintained by the US Department of State.
17.12. Force Majeure. SeaLights shall not be responsible for any failure to perform any obligation or provide any service hereunder because of any (a) act of God, (b) war, riot or civil commotion, (c) governmental acts or directives, strikes, work stoppage, or equipment or facilities shortages, and/or (d) other similar cause beyond SeaLights’ reasonable control. For the avoidance of doubt, any problems relating to the hosting of the Software shall not be deemed within SeaLights’ reasonable control.
Last Updated: December 19, 2019