TERMS AND CONDITIONS
1. SAAS SERVICES AND SUPPORT
1.1. Subject to the terms of this Agreement, Seapro Solutions, Inc. will provide Customer the Services which are described in detail in Exhibit A.
1.2. Subject to the terms hereof, Seapro Solutions, Inc. will provide Customer with technical support services in accordance with Exhibit C.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Seapro Solutions, Inc. or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2. Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3. Customer will use the Services only in compliance with Seapro Solutions, Inc.’s standard published policies and all applicable laws and regulations. To the extent Seapro Solutions, Inc. believes Customer to be in violation of the Policy, Seapro Solutions, Inc. will notify Customer and provide Customer with a reasonable period to respond to the allegation and cure such violation if one exists. Customer may authorize its third party contractors and consultants to access the Services through Customer’s administrative access privileges on an as needed basis, provided Customer: a) abides by its obligations to protect Confidential Information as set forth in this Agreement and b) remains responsible for all such third party usage and compliance with the Agreement.
2.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Seapro Solutions, Inc. includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Seapro Solutions, Inc. to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and
(ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law (provided that the Receiving Party shall provide notice to the Disclosing Party in such case).
3.2. Customer shall own all right, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the Services, which shall never be deemed to be software or Service, even if delivered or incorporated therewith, including all output, reports, analyses and other materials relating to Customer Data, even if generated by the Services. Seapro Solutions, Inc. shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.3. Notwithstanding anything to the contrary, Seapro Solutions, Inc. shall have the revocable, non-assignable right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), but only to the extent Seapro Solutions, Inc.(i) uses such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Seapro Solutions, Inc. offerings, and (ii) discloses such data solely in aggregate or other de-identified form wholly removed of any Personally Identifiable Data, in connection with its business. No rights or licenses are granted except as expressly set forth herein.
3.4. In providing Services to Customer, Seapro Solutions, Inc. may have access to certain proprietary information owned by Customer and not generally available to the public; this information may include Non-Public Personal Information (“NPPI”) of Customer’s customers and employees as that term is defined in The Gramm-Leach-Bliley Act. Seapro Solutions, Inc. is authorized to use this NPPI solely in conjunction with the Services provided to Customer. Seapro Solutions, Inc., its employees and agents will not disclose any NPPI to any outside Party without Customer’s consent unless compelled by subpoena or other validly issued administrative or judicial request. As between the Parties, the NPPI is the sole property of Customer and Seapro Solutions, Inc. agrees that, upon request of Customer, it will return or destroy all NPPI, unless otherwise required by law or regulation to maintain such information. If requested by Customer, Seapro Solutions, Inc. shall cooperate with Customer in evaluating the security measures that Customer requires Seapro Solutions, Inc. have in place for the protection of NPPI. If Customer requests additional security measures and Seapro Solutions, Inc. cannot for any reason meet such security measures for the engagement contemplated hereby, Seapro Solutions, Inc. shall notify Customer and Customer may, as its sole remedy, terminate this Agreement without cause upon written notice to Seapro Solutions, Inc..
3.5. Seapro Solutions, Inc. agrees to: (a) implement and maintain appropriate physical, technical and administrative security measures for the protection of Personally Identifiable Data, which shall mean any information relating to an identified or identifiable natural person that is protected against disclosure under applicable law or regulation, as required by any federal or state law; including, but not limited to: (i) encrypting all transmitted records and files containing Personally Identifiable Data that will travel across public networks, and encryption of all data containing Personally Identifiable Data to be transmitted wirelessly; (ii) prohibiting the transfer of Personally Identifiable Data to any portable device unless such transfer has been approved in advance; and (iii) encrypting any Personally Identifiable Data to be transferred to a portable device; and (b) implement and maintain a written information security program.
3.6. The administrative, physical and technical safeguards of Seapro Solutions, Inc. must be designed to protect Personally Identifiable Data against loss, damage or unauthorized access, use or disclosure. Except as authorized by Customer, Seapro Solutions, Inc. will not disclose Personally Identifiable Data to any third Party other than subcontractors and agents who have contractually agreed to comply with obligations substantially similar to those set forth herein.
3.7. Upon discovery by Seapro Solutions, Inc. of any loss or any unauthorized access, use or disclosure of Customer data while in the custody and control of Seapro Solutions, Inc. under this Agreement, Seapro Solutions, Inc. will promptly, and in no even later than forty-eight (48) hours, notify Customer thereof in writing along with any actions that have been taken to mitigate the effects of such loss or disclosure and will take such further actions as it deems reasonably necessary to mitigate such effects. Seapro Solutions, Inc. will provide reasonable assistance and cooperation in the investigation of any such loss or unauthorized access, use or disclosure.
3.8. Seapro Solutions, Inc. agrees to comply with all applicable laws and implementing regulations related to the security and privacy of Personally Identifiable Data in effect on the date of this Agreement, to the extent that it knows or has been advised that, as a result of this Agreement, its activities are subject to any such privacy laws. Seapro Solutions, Inc. agrees that no Customer Content may be received, maintained, stored, accessed or transmitted outside of the United States of America.
3.9. The obligations set forth in this Section shall survive the termination of this Agreement.
3.10. Each party acknowledges and agrees that (i) it would be extremely difficult, if not impossible, to calculate the actual damages in the event of Seapro Solutions, Inc.’ breach of any provision of this Section 3; and (ii) breach of any such provision would result in ongoing damages to the non-breaching party that could not be adequately compensated by monetary damages. Accordingly, each party agrees that in the event of any actual or threatened breach of any of the aforementioned provisions, the non-breaching party shall be entitled, in addition to all other rights and remedies existing in its favor at law, in equity or otherwise, to obtain injunctive or other equitable relief (including without limitation a temporary restraining order, a preliminary injunction and a final injunction) against the other party to prevent any actual or threatened breach of any such provision and to enforce this Agreement specifically, without the necessity of posting a bond or other security or of proving actual damages.
4. PAYMENT OF FEES
4.1. Customer will pay Seapro Solutions, Inc. the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). Seapro Solutions, Inc. reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon fifteen (15) days prior notice to Customer (which may be sent by email). If Customer believes that Seapro Solutions, Inc. has billed Customer incorrectly, Customer must contact Seapro Solutions, Inc. no later than 45 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Seapro Solutions, Inc.’s customer support department.
4.2. Seapro Solutions, Inc. may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Seapro Solutions, Inc. fifteen (15) days after the receipt of the invoice. Unless the subject of a dispute, unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service after ten (10) days’ written notice to Customer. Customer shall be responsible for all sales or use taxes associated with the Services.
5. TERM AND TERMINATION
5.1. Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”).
5.2. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
5.3. Either party may terminate the Services and this Agreement upon no less than thirty (30) days prior written notice.
5.4. Either party may terminate the Services and the Agreement upon a material breach of the Agreement by the other party if such breach is not cured within 15 days after receipt of written notice. Notwithstanding the foregoing, either party may suspend the Services immediately in the event of any breach of Section 3 (Confidentiality; Proprietary Rights).
5.5. In the event that either party becomes insolvent, makes a general assignment for the benefit of creditors, is adjudicated a bankrupt or insolvent, commences a case under applicable bankruptcy laws, or files a petition seeking reorganization, the other party may request adequate assurances of future performance. Failure to provide adequate assurances, in the requesting party’s reasonable discretion, within 10 days of delivery of the request shall entitle the requesting party to terminate the Agreement immediately upon written notice to the other party.
5.6. If the Agreement is terminated for any reason:
a) Customer shall pay Seapro Solutions, Inc. within thirty (30) days of such termination, all fees accrued under this Agreement prior to the effective date of such termination, provided however, if Customer terminates for material breach of the Agreement by Seapro Solutions, Inc., Seapro Solutions, Inc. shall refund Customer any pre-paid and unused fees for services not delivered by Seapro Solutions, Inc.; and
b) Customer’s right to access and use the Services shall be revoked and be of no further force or effect upon the effective date of such termination.
5.7. Customer Data shall be available to Customer to retrieve in its native digital format, or any other format reasonably requested by Customer, at any time and at no additional charge to Customer throughout the Term and for no more than thirty (30) days after expiration or termination of the Agreement for any reason. After such time period, Seapro Solutions, Inc. shall have no further obligation to store or make available the Customer Data and will securely delete any or all Customer Data.
6. WARRANTY AND DISCLAIMER
Seapro Solutions, Inc. represents and warrants to Customer that the Services will perform substantially in accordance with the documentation and demonstrations provided by Seapro Solutions, Inc. to Customer prior to the execution of this Agreement during the Term. Seapro Solutions, Inc. shall use best efforts consistent with prevailing industry best practices to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Seapro Solutions, Inc. or by third-party providers, or because of other causes beyond Seapro Solutions, Inc.’s reasonable control, but Seapro Solutions, Inc. shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. Throughout the Term, all Services will be free of any and all time locks, viruses, trojans, worms, other malware and malicious code, copy protect mechanisms, back doors, or any disclosed or undisclosed features designed to disable the Services or render it incapable of operation, or to permit access unauthorized by Customer to the Services or to any Customer networks, systems, programs or data. Seapro Solutions, Inc. warrants that it shall maintain SSAE 16 Type II certification and NIST certification throughout the Term. Upon written request from Customer, Seapro Solutions, Inc. shall provide Customer with Seapro Solutions, Inc.’s SSAE 16 SOC II audit report once per year.
In the event Seapro Solutions, Inc. breaches the service level terms set forth in Exhibit B, Customer shall be entitled to a rebate of 1/30th of the totally monthly Fees for each hour, or part thereof, in which the Services are so affected. In no event shall Customer’s rebate in any month exceed more than fifty percent (50%) of the total monthly Fees.
SUBJECT TO THE FOREGOING, SEAPRO SOLUTIONS, INC. DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND SEAPRO SOLUTIONS, INC. DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Seapro Solutions, Inc. shall hold Customer harmless from liability to third parties resulting from infringement or alleged infringement by the Service of any patent, copyright, trade secret or other proprietary right of any other party(“Infringement Claim”), provided Seapro Solutions, Inc. is reasonably notified of any such threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Seapro Solutions, Inc. will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service, but only to the extent any such portions or components of the Service are (i) not supplied by Seapro Solutions, Inc., (ii) made in accordance with Customer specifications and such material alterations are the basis for any Infringement Claim, (iii) that are modified by Customer after final delivery by Seapro Solutions, Inc., (iv) combined with other products, processes or materials where the alleged infringement materially relates to such combination, or (v) where Customer’s use of the Service is not materially in accordance with the terms of this Agreement. If, due to an Infringement Claim, the Services are held by a court of competent jurisdiction to be or are believed by Seapro Solutions, Inc. to be infringing, Seapro Solutions, Inc. may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR (i) BODILY INJURY OF A PERSON, (ii) INDEMNIFICATION OBLIGATIONS, (iii) ANY APPLICABLE INSURANCE WHICH MAY EXCEED THE AMOUNTS SET FORTH HEREIN, OR (iv) EITHER PARTY’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT, THE TOTAL AGGREGATE LIABLITY OF EITHER PARTY UNDER THIS AGREEMENT SHALL NOT EXCEED FIVE HUNDERED THOUSAND DOLLARS ($500,000). FURTHER, SEAPRO SOLUTIONS, INC. AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS. NEITHER PARTY SHALL BE LIABLE HEREUNDER FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR FOR ANY MATTER BEYOND THE PARTY’S REASONABLE CONTROL.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Seapro Solutions, Inc.’s prior written consent. Seapro Solutions, Inc. may transfer and assign any of its rights and obligations under this Agreement without consent. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Seapro Solutions, Inc. in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
This Agreement shall be governed by the laws of the State of Texas without regard to its conflict of laws provisions.