This End User License Agreement (“Agreement”) is between Seismic Software, Inc., (“Seismic,” “we”) and the Customer (“you,” “your”). The person signing this Agreement on your behalf has been duly authorized and empowered to execute and deliver this Agreement. In consideration of the mutual promises and covenants contained herein and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows:
1. ACCESS TO THE SOFTWARE. Subject to the terms and conditions of this Agreement, Seismic hereby grants you a limited, non-exclusive, non-transferrable, non-sublicense able license to use (in object code only) the Seismic software features that you have selected and paid for pursuant to Section 9 below (the “Software”) for your own internal business purposes, and not for the use or benefit of any third party. You agree that Seismic owns all right, title, and interest in and to the Software and all intellectual property rights related thereto, including without limitation all related written materials and associated documentation (“Documentation”). All rights not expressly granted herein are reserved and retained by Seismic and its suppliers and/or licensors. Seismic may choose to provide upgrades or enhancements to the Software to you free of charge in its sole discretion.
2. YOUR CONTENT. During the term of the Agreement, you may use the Software to upload, display, manage, or otherwise use certain information or content provided by you (“Content”). Under no circumstances will Seismic be liable in any way for any Content, including, but not limited to, any loss or damage of any kind to the Content. You hereby represent and warrant that all Content will be your original work and will not infringe any right of any third party (including without limitation intellectual property rights), and that you possess all rights necessary to use such Content in connection with the Software. You will indemnify and hold Seismic, its parents, subsidiaries, affiliates, officers, and employees harmless (including, without limitation, from all damages, liabilities, settlements, costs and attorneys' fees) from any claim or demand made by any third party due to or arising out of your breach of the previous sentence. Seismic reserves the right to remove any Content from the Software at any time, for any reason (including, but not limited to, upon receipt of claims or allegations from third parties or authorities relating to such Content), or for no reason at all.
3. LICENSE RESTRICTIONS. You warrant, represent and agree that you will not (and will not allow any third party or User (as defined below) to): (i) decompile, reverse engineer, or otherwise attempt to obtain the source code of the Software; (ii) provide, lease, lend, license, sublicense, sell, or use the Software for timesharing or service bureau purposes, or otherwise use or allow others to use the Software for the benefit of any third party; (iii) use the Software in any manner that violates any law, statute, ordinance or regulation (including without limitation any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other U.S. or foreign government agency); (iv) copy, modify, or create derivative works of the Software or the Documentation; (v) alter or remove any copyright, trademark, or other proprietary notice from the Software, the Documentation, or any portion thereof; (v) use the Software in any manner that violates the security of any computer network, including without limitation by using the Software to transmit a virus, trojan horse, worm, time bomb, or other harmful computer code, file, or program; and (vi) use any device, software or routine to interfere or attempt to interfere with the proper working of the Software or any other person or entity’s use of the Software.
4. SUPPORT. Seismic offers technical support via email at support@seismic.com. Seismic will use commercially reasonable efforts to respond to your requests for support; however, Seismic does not make any representations or warranties that it will respond to a request for support within a certain amount of time, or that it will be able to remedy any problem you may be having.
5. WARRANTY DISCLAIMER. THE SOFTWARE IS PROVIDED ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
6. PRIVACY POLICY. For information regarding Seismic’s treatment of personally identifiable information (including without limitation your Content), please review Seismic’s current Privacy Policy at www.seismic.com/privacypolicy, as such policy may be changed from time to time, which is incorporated herein by reference. Your acceptance of this Agreement constitutes your acceptance and agreement to be bound by Seismic’s Privacy Policy. It is your responsibility to ensure that you understand the terms of the Privacy Policy, so you should periodically check the current version of the Privacy Policy for changes.
7. INDEMNITY. Seismic will indemnify and hold you harmless (including, without limitation, from all damages, liabilities, settlements, and costs payable to a third party) from a claim made by a third party that the Software infringes the intellectual property rights of such third party. Seismic’s obligations hereunder do not apply with respect to infringement claims that arise as a result of (i) combination of the Software with anything not provided to you by Seismic; (ii) modification of the Software by someone other than Seismic; (iii) your continued use of the Software after being notified that the Software may be infringing; (iv) your use of a the Software in a manner not permitted by this Agreement. Seismic’s indemnity obligations hereunder are conditioned upon your giving Seismic (a) prompt notification of any potentially indemnifiable claim (“Claim”); (b) sole control of the defense and settlement of any Claim; and (c) reasonable assistance, at Seismic’s request and expense, in the defense and settlement of any Claim.
8. LIMITATION OF LIABILITY. IN NO EVENT SHALL SEISMIC OR ITS SUPPLIERS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS BE LIABLE WITH RESPECT TO THE SOFTWARE, THE DOCUMENTATION, OR THE SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, TORT, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY (I) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE GREATER OF THE FEES PAID BY YOU THEREFOR OR $100 (II) FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER; (III) FOR DATA LOSS OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; OR (IV) FOR ANY MATTER BEYOND SEISMIC’S REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
9. FEES AND PAYMENT.
9.1 You may choose from two subscription plans, as described below. You shall pay all fees due in connection with the subscription you purchase, and your access to the Software will be terminated if you do not pay those amounts in full as required under such subscription plan. We reserve the right to change the fees we charge for a subscription upon the expiration of each Subscription Period (as defined below). We will give you forty-five (45) days notice before the end of your Subscription Period of a price change for the subsequent Subscription Period.
9.2 Subscription Plans.
(a) The “Premium User Subscription” includes access to the following tools: Salesforce.com Requester, Windows 8 Requester, Template Designer, Library, Web Requester, iPad Requester, and Administrative Interfaces. The Premium User Subscription costs [[PremiumMonthly]] per month, per user accessing and/or utilizing the Software, (a “User”). You shall not allow more than one individual to use a single User account. You must purchase and maintain at least five (5) Users for the Premium User Subscription.
(b) The “Standard User Subscription” includes access to the following tools: Web Requester, Salesforce.com Requester, Windows 8 Requester, and iPad Requester. You shall not allow more than one individual to use a single User account. You must purchase and maintain at least ten (10) Users for the Business User Subscription.
(c) You may choose a subscription term of one (1), two (2), or three (3) years (each, a “Subscription Period”). The Subscription Period shall begin on the date any one of your Users accesses or utilizes the Software. If you choose a two (2) year Subscription Period, you will receive a ten percent (10%) discount off the prices quoted above for all Users under your subscription plan (including those Users who are added after the start of your subscription plan, as set forth in Section 9.2(e) below). If you choose a three (3) year Subscription Period, you will receive a twenty percent (20%) discount off the prices quoted above for all Users under your subscription plan (including those Users who are added after the start of your subscription plan, as set forth in Section 9.2(e) below).
(d) You may not remove Users from your subscription plan during any Subscription Period. You will advise Seismic of the number of Users you select in advance of the start of your Subscription Period. If you are a Premium subscriber, you may add one (1) or more additional Users after the start of your Subscription Period, and you will be billed in advance for such additional User(s) at the time of their addition for the time remaining on your Subscription Period. If you are a Standard subscriber and you wish to add additional Users after the start of your Subscription Period, you may only add additional Users in increments of five (5) Users at a time; you will be billed in advance for such additional Users at the time of their addition for the time remaining on your Subscription Period.
9.3 Payment Terms.
(a) All subscription fees will be charged in advance at the start of your then-current Subscription Period (and upon the addition of additional User(s) to your subscription, as applicable) to the credit card you provided to Seismic. If the credit card information you have provided is incorrect or incomplete, or Seismic is otherwise unable to complete a transaction due to your error or omission, any amounts not paid will bear a late fee of one and one half percent (1.5%) per month until paid, or the maximum rate permitted by law, whichever is lower. All subscription fees will be charged in advance at the start of your then-current Subscription Period (and upon the addition of additional User(s) to your subscription, as applicable). You will be invoiced in advance with payment due with 30 days of the invoice date. If the invoice is not paid in full by the due date, any amounts not paid will bear a late fee of one and one half percent (1.5%) per month until paid, or the maximum rate permitted by law, whichever is lower. If your payment transaction cannot be completed for forty five (45) days or more after the start of your Subscription Period, Seismic reserves the right to immediately terminate this Agreement and/or suspend your use of the Software. All fees paid hereunder are non-refundable. For avoidance of doubt, if you opt to remove Users from your subscription, no refunds or discounts will be granted.
(b) You will be responsible for withholding, filing, and reporting all taxes, duties and other governmental assessments associated with your activity in connection with the Software.
10. TERM AND TERMINATION. This Agreement shall remain in full force and effect while you use the Software. Seismic will notify you via email at least forty-five (45) days prior to the end of your then-current Subscription Period of the pending expiration of your Subscription Period. If you do not notify Seismic of your intent to terminate your subscription or your desire to change the terms of your subscription within fifteen (15) days prior to the end of your then-current Subscription Period, your subscription will be automatically renewed on its then-current terms. You may terminate your use of the Software or your membership at any time, provided, however, that no refunds will be granted. Seismic may terminate or suspend your access to the Software at any time, without notice, if you breach any of the terms or conditions of this Agreement. Upon expiration or earlier termination of this Agreement, your right to use the Software will immediately cease. The following provisions shall survive termination of this Agreement: Section 2, 3, and Sections 5-12 (inclusive).
11. MISCELLANEOUS. The failure of either party to exercise, in any respect, any right provided for herein shall not be deemed a waiver of any further rights hereunder. Seismic shall not be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond Seismic’s reasonable control, including, without limitation, mechanical, electronic or communications failure or degradation. If any provision of this Agreement is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by you except with Seismic’s prior written consent. Seismic may transfer, assign or delegate this Agreement and its rights and obligations hereunder without consent. Both parties agree that 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 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 you do not have any authority of any kind to bind Seismic in any respect whatsoever.
12. PRESS RELEASE, ETC. Upon execution of this Agreement, each Party may issue a press release that is mutually agreed to by both Parties announcing the relationship under this Agreement. The Parties may collaborate on other promotional activites as mutually agreed to.
13. ARBITRATION; GOVERNING LAW. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflict of laws provisions thereof. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Diego County, California using the English language in accordance with the Streamlined Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Streamlined Arbitration Rules and Procedures of JAMS. Judgment upon the award so rendered may be entered in a court having jurisdiction, or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts located in the Southern District of California.
