TERMS OF SERVICE AND USE
THESE TERMS AND CONDITIONS (THE “Agreement“) CONSTITUTE A BINDING AGREEMENT BETWEEN SEALIGHTS TECHNOLOGIES LTD. (“SeaLights”) AND THE ENTITY EXECUTING THE CORRESPONDING PURCHASE ORDER (THE “Customer“), WHICH PURCHASE ORDER IS HEREBY INCORPORATED INTO THIS AGREEMENT BY REFERENCE (THE “Purchase Order“).
SeaLights and Customer may be collectively referred to herein as the “Parties“, and each individually as a “Party“.
1. DEFINITIONS AND INTERPRETATION
This Agreement contains a range of capitalized terms defined in this Section 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 Purchase Order) made available to Customer, in part (a) on a hosted, cloud-based service basis, and (b) for download and installation.
3. LICENSE. 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, 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.
4. LICENSE RESTRICTIONS
4.1. 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, unless (and only to the extent that) the Software (or any portion thereof) or other software has been provided to Customer in source code format; (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, without first sending the results and related study(ies) to SeaLights, and obtaining SeaLights’ written approval of the assumptions, methodologies and other parameters of the testing or study; (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) use any Third Party Software (defined below) not licensed under open source terms, outside of the Software or on a standalone basis; (l) 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 (m) 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 Section (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.
4.3. To the extent Customer is given the right, under any law or regulation applicable to Customer, to receive information and/or materials for purposes of making the Software interoperable with other software products, Customer shall request from SeaLights (in a detailed writing) access to such information and/or materials, and if SeaLights accepts such request, SeaLights may (in its sole discretion) impose additional conditions on such access and use.
5. 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, sublicensable, perpetual and irrevocable license 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, as well as to make available to Customer, and generally improve, the Software (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 during and after any termination of this Agreement, all licenses, consents, permissions and approvals required to grant the Customer Data License. The Customer Data License shall survive any termination of this Agreement.
5.2 Customer hereby acknowledges and agrees that Sealights is acting as a data processor and will use any Customer 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, Customer shall download the Sealights’ Data Processing Agreement (“DPA”) available on Sealight’s website and return it signed to Sealights as described therein.
5.4 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, and/or fails to return an executed version of the DPA to Sealights, 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.
6. FEEDBACK. The customer has no obligation to provide SeaLights with any feedback, ideas or suggestions concerning the Software or Documentation (collectively, “Feedback“). Nevertheless, to the extent Customer provide any Feedback, Customer hereby grants SeaLights a worldwide, non-exclusive, royalty-free, fully-paid, perpetual, irrevocable, sublicensable, and assignable license to use, copy, reproduce, distribute, modify, alter, adapt, arrange, translate, create derivative works of, publicly display, perform and communicate, and otherwise commercially exploit such Feedback for any purpose.
7. 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 Notice and will comply with any valid written request submitted by Customer to SeaLights for exercising Customer’s rights under such 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.
8. SUPPORT AND UPDATES. SeaLights offers support and maintenance services for the Software to the extent described in the Purchase Order. Any updates (such as a fix or patch), upgrades or other enhancements of the Software (“Updates”) will be supplied according to SeaLights’ then-current policies, which may include automatic implementation without any notice to Customer. In some cases, Customer will be required to install the Update manually. All references in this Agreement to “Software” shall include its Updates as well, and this Agreement shall govern any Update unless the Update is accompanied by separate or additional licensing terms, in which case such terms will apply instead of, or in addition to, this Agreement (as set forth in such licensing terms).
9. FEES. Customer’s access to and use of the Software is subject to Customer’s payment in full of the subscription fees set forth in the Purchase Order (the “Fees”). The Fees for any Renewal Term will be as determined in the Purchase Order (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 Purchase Order; if the Purchase Order omits 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.
10. AUDIT. During the Term and for one (1) year after termination or expiration of this Agreement, SeaLights (or its designated representative), upon reasonable prior written notice to Customer and during Customer’s normal business hours, will have the right to audit the Customer’s use of the Software to verify Customer’s compliance with its obligations hereunder. SeaLights may conduct no more than one (1) audit per the calendar year. Customer will reasonably cooperate with SeaLights and its representative (if any) and will address any non-compliance identified by the audit. If the audit reveals a material breach of this Agreement and/or a breach under Section 3 (License) or Section 4 (License Restrictions), Customer shall reimburse SeaLights for the cost and expense of the audit.
11. TERM. This Agreement commences on the date of execution of the Purchase Order (“Effective Date“) and, unless terminated in accordance herewith, will remain in full force and effect for the initial subscription term stated in the Purchase Order (“Initial Term“), following which the subscription term may be renewed by mutual agreement of the Parties (each, a “Renewal Term” and together with the Initial Term, the “Term“) unless either Party notifies the other Party of its intent not to renew the subscription not less than thirty (30) days prior to the end of the then-current term.
12. TERMINATION. Notwithstanding Section 11 (Term):
12.1. Termination By Customer. Customer may terminate this Agreement, subject to Section 9 (Fees): (a) by canceling the Account; and/or (b) on ten (10) days’ prior written a notice to SeaLights at email@example.com. Customer’s sole remedy in the event Customer objects to any provision of this Agreement or becomes dissatisfied with the Software, is to terminate this Agreement in accordance with this subsection.
12.2. Termination By SeaLights. SeaLights reserves the right to: (a) immediately terminate this Agreement, or otherwise modify, suspend or discontinue Customer’s access to and use of the Software (or any part thereof), in the event Customer commits any breach of this Agreement and, if such breach was curable, fails to cure such breach within five (5) days of notice by SeaLights; and/or (b) terminate this Agreement for convenience at any time, upon ten (10) days’ prior notice to Customer. Notice by SeaLights under this subsection may be given via e-mail and/or via the Account and will be deemed given upon transmission.
13. CONSEQUENCES OF TERMINATION; SURVIVAL
13.1. 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.
13.2. 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 10 (Audit) and 13 (Consequences of Termination; Survival) through 19 (General) inclusive.
14. OWNERSHIP. 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.
15. 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, 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. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS, AND TO THE EXTENT APPLICABLE TO CUSTOMER, SEALIGHTS LIMITS THE DURATION OF SUCH WARRANTIES AND CONDITIONS TO THE DURATION OF NINETY (90) DAYS FROM THE EFFECTIVE DATE.
16. INDEMNIFICATION. In the event of any third party demand, claim, suit, action and/or proceeding against SeaLights, and/or any of its respective directors, officers, employees, agents, representatives, customers, suppliers, or licensors (each, an “Indemnitee“), and it is based upon or arises from Customer’s (for clarity, including any Authorized User’s): (a) use of the Software (or part thereof); (b) breach of any provision of this Agreement; and/or (c) violation of any law or regulation applicable to Customer (each of the foregoing, a “Claim“) then, upon written request by SeaLights (to be decided in its sole discretion), Customer agrees to assume full control of the defense and settlement of the Claim; provided, however, that (A) SeaLights reserves the right, at any time thereafter, to take over full or partial control of the defense and/or settlement of the Claim; and (B) Customer shall not settle any Claim, or admit to any liability thereunder, without the prior express written consent of SeaLights. In addition, and regardless of whether (or the extent to which) Customer participated in the defense and/or settlement of a Claim, Customer agrees to indemnify and hold harmless the Indemnitee for and against: (i) any costs and expenses (including without limitation reasonable attorneys’ fees) incurred by the Indemnitee in the defense of such Claim; and (ii) any amounts awarded against, or imposed upon, the Indemnitee under such Claim, or otherwise paid in settlement of the Claim (including without limitation damages, losses, liabilities, and fines).
17. LIMITATION OF LIABILITY
17.1. IN NO EVENT WILL SEALIGHTS BE 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. IN ADDITION, THE COMBINED AGGREGATE LIABILITY OF SEALIGHTS UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED TEN U.S. DOLLARS (US$ 10).
17.2. THE FOREGOING EXCLUSIONS AND LIMITATIONS SHALL APPLY: (A) EVEN IF SEALIGHTS HAS 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). CUSTOMER ACKNOWLEDGES AND AGREES THAT THIS SECTION (LIMITATION OF LIABILITY) IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN CUSTOMER AND SEALIGHTS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OF OTHER DAMAGES, AND TO THE EXTENT APPLICABLE TO CUSTOMER, SUCH EXCLUSIONS AND LIMITATIONS SHALL NOT APPLY.
18. GOVERNING LAW AND JURISDICTION
18.1. 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.
18.2. Notwithstanding anything in this Agreement to the contrary, SeaLights may seek injunctive relief, specific performance, and/or other equitable relief in any court worldwide that has competent jurisdiction.
19.1. Entire Agreement. This Agreement (together with the Purchase Order) 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.
19.2. Assignment. SeaLights may assign this Agreement (or any of its rights and obligations hereunder) without Customer’s consent and without notice. This Agreement is personal to Customer, and Customer shall not assign this Agreement (or any of its obligations or rights hereunder) without SeaLights’ prior express written consent in a duly signed writing. Any prohibited assignment shall be null and void.
19.3. 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.
19.4. 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.
19.5. 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.
19.6. 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.
19.7. 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.
19.8. 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.
19.9. 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. Customer further acknowledges and agrees that some of SeaLights’ suppliers and/or licensors may, in their agreements with SeaLights, be entitled to enforce certain rights and usage restrictions against users of the Software, and, to that extent, such suppliers and licensors shall have the right to enforce such rights and restrictions directly against Customer.
19.10. 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.
19.11. 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.
19.12. 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: June 13, 2017