End User Terms of Service for BarTender Cloud Products

by Seagull Scientific, Inc.

Thank you for using Seagull Scientific’s BarTender Cloud Products! These BarTender Cloud Terms of Service (these “Terms”) govern your use of and access to our Support, discussion forums or other interactive areas or services, and services such as Cloud Products (collectively, the “Services”) and software that we include as part of the Services, as well as any applications, including mobile applications, BarTender Templates, scripts, instruction sets, and related documentation (collectively, the “Software”).

If you received the link to your BarTender Cloud subscription (“BarTender Cloud subscription license” or “subscription license”) (which defines the right to use, access, and consume the Software and Services) from an organization or group, including but not limited to a business or any other commercial entity, government entity, non-profit organization, or educational institution (each, a “Business”), then (a) you are a “Business User” of such Business; (b) your profile associated with such subscription license is a “Business Profile”; and (c) all references to “you” in these Terms will mean such Business. If you are a Business User, you agree that, due to your receipt of subscription licenses from such Business, (1) Seagull Scientific (“Seagull”, “we”, ”our” or “us”) may provide such Business with the ability to access, use, remove, retain, and control your Business Profile and all Content therein whether uploaded or imported before or after the date these Terms were last updated; (2) your use of the Services and Software is governed by such Business’s agreement with Seagull; and (3) Seagull may provide your personal information to such Business. If you are a Business User with subscription licenses from multiple Businesses, you may have separate Business Profiles associated with each Business. As a Business User, you may have different agreements with or obligations to a Business, which may affect your Business Profile or your Content. Seagull is not responsible for any violation by you of such agreements or obligations. If you did not receive a subscription license from a Business (e.g., you purchased a Cloud Product as an individual and received the BarTender Cloud subscription license), then (a) you are a “Personal User”; (b) your profile is a personal profile; (c) you maintain sole access and control over all Content in your personal account or personal profile (except as otherwise indicated in Seagull’s Privacy Policy); and (d) all references to “you” in these Terms will mean you as an individual. If you received BarTender Cloud subscription licenses as an individual and from a Business, then you are both a Personal User and a Business User, as applicable in accordance with the subscription license(s) you utilize at the time of each use.

These Terms are effective as of the date you first click “I agree” (or similar button or checkbox) or use or access a Cloud Product, whichever is earlier (the “Effective Date”). These Terms do not have to be signed in order to be binding. By checking the acceptance box or installing or using all or any portion of the software or creating a Cloud Product account, you are accepting all of the terms and conditions of these Terms as published on Seagull Scientific’s website at www.seagullscientific.com at the time of your subscription. These Terms will remain effective throughout the duration of the subscription by which the user received the BarTender Cloud subscription license; however, subscription renewals will be in accord with the posted terms at the time of renewal. Seagull reserves the right to change terms at the time of renewal and the effective terms shall be those posted at that time.

1. What these Terms cover.

1.1. Cloud Products. These Terms govern our Cloud Products and our maintenance and support thereof. These Terms include, by reference, our Policies (including our Privacy Policy). Our Services and Software are licensed, not sold, to you in monthly, annual or multi-year intervals.

1.2. Support Coverage Agreement. Certain qualifying Cloud Products are also subject to the BarTender Cloud Service Level Agreement, as specified in such terms. While any right to use, access, and consume the Software and Services is based upon your purchased subscription, to the extent your purchased subscription falls short of your printing need, you may upgrade your subscription and purchase further access to Cloud Products.

2. How Cloud Products are administered.

2.1. Administrators. Through the Cloud Products, you may be able to specify certain End Users as Administrators who will have important rights and controls over your use of Cloud Products and End User Accounts which will include placing Orders for subscription licenses to Cloud Products; creating, de-provisioning, monitoring, or modifying End User Accounts, and setting End User usage permissions; and managing access to Your Data by End Users or others.

(A) Responsibility for End Users. Administrators are responsible for compliance with these Terms by all of your End Users, including for fulfillment of any payment obligations. In addition, as an Administrator you are responsible for the activities of all your End Users, including Orders they may place and how End Users use your Data, even if those End Users are not from your organization or domain.

(B) Credentials. Administrators must require that all End Users keep their user IDs and passwords for the Cloud Products strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. As an Administrator, you are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.

2.2. Usage Metrics. Your subscription license to use the Cloud Products will be subject to and restricted by usage metrics.

3. What's included in your Cloud Product subscriptions; what are the restrictions.

3.1. Access to Cloud Product(s). Subject to your compliance with the Terms and applicable law, your BarTender Cloud subscription license(s) define which of the Services and Software that we make available for your access and use. Your subscription license(s) expire at the end of the term set forth in your order document enumerating your BarTender Cloud subscription licenses. The version(s) of the Services and Software available at your renewal date may be different from those version(s) available to you when you first purchased your subscription licenses from Seagull. The versions of the Services and Software that Seagull supports can be found here. You agree that your decision to use or purchase Software or Services is not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by us regarding future functionality or features.

3.2. Support. During the Subscription Term, we will provide such maintenance and support for the Cloud Products as provided in accordance with the BarTender Cloud Service Level Agreement found here, and the applicable BarTender Cloud subscription license.

3.3. Printed Item-Based Subscription. Your subscription is based on the number of items printed to a printer, a marking device, an electronic document, electronic signage, or other type of output device, document, or data system, per month. If there are one or more discrete items per page, for example a page with multiple labels, each discrete printed item is counted as one (1) printed item. For discrete items that are double-sided or multiple pages long, for example a multi-page product specification, packing slip or receipt, each side or page of that discrete items is counted as one (1) printed item. While Seagull strives to monitor the volume of printed items in a specific timeframe, it is your responsibility to accurately count the number of items printed, including to the extent applicable, across all production and non-production environments, in accordance with the terms of the applicable subscription license, and appropriately pay Seagull for the correct volume of printed items. You can find the number of printed items established for your plan here.

3.4. Restrictions. You must not misuse the Services or Software. For example, you must not:

(A) use the Services or Software without, or in violation of, a written license or agreement with Seagull;

(B) modify, port, adapt, or translate any portion of the Services or Software;

(C) reverse engineer (including but not limited to monitoring or tracking the inputs and outputs flowing through a system or an application in order to recreate that system), decompile, disassemble, or otherwise attempt to discover, within any Service or Software, the source code, data representations or underlying algorithms, processes, methods, and any other portion of such Service or Software.

(D) sublicense, or resell the Services or Software unless you have been certified by and are authorized by Seagull Scientific to do so;

(E) enable or allow others to use the Services or Software using your account information;

(F) offer, use, or permit the use of the Services or Software on behalf of any third party that is neither your customer nor your supplier without Seagull’s prior written consent. Without such prior written consent from Seagull, you must not offer, use or permit the use of the Services or Software regardless of the method, including, for example, on a membership, subscription or time-sharing basis, as a service bureau or as part of a hosted service;

(G) access or attempt to access the Services or Software by any means other than the interface we provide or authorize;

(H) circumvent any access or use restrictions put into place to prevent certain uses of the Services or Software;

(I) Share Content or BarTender Templates or otherwise engage in behavior that violates anyone’s Intellectual Property Rights. “Intellectual Property Rights” means copyright, moral rights, trademark, trade dress, patent, trade secret, unfair competition, right of privacy, right of publicity, and any other proprietary rights;

(J) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

(K) attempt to disable, impair, or destroy the Services or Software;

(L) upload, transmit, store, or make available any Content, BarTender Template(s), or code that contains any viruses, malicious code, malware, or any components designed to harm or limit the functionality of the Services or Software;

(M) disrupt, interfere with, or inhibit any other user from using the Services or Software;

(N) use any data mining or similar data gathering and extraction methods in connection with the Services or Software, including data scraping for machine learning or other purposes; or

(0) create Seagull accounts for the purpose of violating these Terms or for circumventing account termination or other types of actions taken by Seagull.

3.5. Rights Relative to Decompiling.

If the laws of your jurisdiction give you the right to decompile the Services or Software to obtain information necessary to render the licensed portions of the Services or Software interoperable with other software or hardware you are using, you must first request such information from us. We may, in our discretion, either provide such information to you or impose reasonable conditions, including a reasonable fee, on your decompilation of the Services or Software to ensure that our and our suppliers’ proprietary rights in the Services and Software are protected.

3.6. Seagull Intellectual Property. We remain the sole owner of all right, title, and interest in the Services and Software. Except as stated in the Terms, we do not grant you any rights to patents, copyrights, trade secrets, trademarks, or any other rights in respect to the items in the Services or Software. We reserve all rights not granted under the Terms.

3.7. BarTender Template Library. Seagull grants you a personal, non-exclusive, and non-transferrable license to use Seagull’s library of BarTender Templates to create your end use (i.e., the derivative application or product authored by you) into which the BarTender Templates, or derivations thereof, are embedded for your use (“End Use”). You may modify the provided BarTender Templates prior to embedding them in the End Use. You may reproduce and distribute the provided BarTender Templates only in connection with your End Use, however, under no circumstances can you distribute the provided BarTender Templates on a stand-alone basis, outside of the End Use. BarTender Templates and the BarTender Template Library cannot be used for any other purpose than for which they were provided. You cannot distribute these BarTender Templates in any way that allows a third party to use, download, extract, or access the BarTender Template Library as a stand-alone file, and you cannot claim any rights in the BarTender Template Library.

4. Our security and data privacy policies.

4.1. Privacy. We collect certain data and information about you and your End Users in connection with you and your End Users’ use of the Cloud Products and otherwise in connection with these Terms. We collect and use all such data and information in accordance with our Privacy Policy, which you acknowledge.

4.2. Improving Cloud Products. We are always striving to improve the Cloud Products. In order to do so, we use analytics techniques to better understand how our Cloud Products are being used. For more information on these techniques and the type of data collected, please read our Privacy Policy.

4.3. Subpoenas and Other Legal Compulsion. Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders, but we will use commercially reasonable efforts to notify you when permitted to do so.

4.4. Web Analytics and Data Collection. In providing the Cloud Products, Seagull provides hosting services. Seagull may record and collect data and information related to your subscription account activity, including but not limited to latency, source destination, and Usage Metrics for the purposes of fulfilling our rights and obligations under this Agreement, or to provide product Support or for product development. No data is collected for Seagull’s use about User Content, e.g., what text or images were printed, nor data encoded into barcodes or RFID tags. No Personal Data is collected in a manner to correlate with any identified individual or recognized entity. You may view the data Seagull Scientific collects and how we may use it on our website. You may review Seagull Scientific’s data privacy policy on our website.

4.5. Feedback. You have no obligation to provide us with ideas, suggestions, proposals, or bug or crash reports (“Feedback”). If you submit Feedback to us however, then you grant us a non-exclusive, irrevocable, perpetual, worldwide, royalty-free, sublicensable, and transferable license to make, use, sell, have made, offer to sell, import, export, reproduce, publicly display, distribute, modify, and publicly perform the Feedback.

5. Terms that apply to Your Data and Ownership.

You (as a Business or an individual, as applicable) retain all rights and ownership of your Content. We do not claim any ownership rights to your Content.

5.1. Using Your Data to provide Cloud Products to You. Subject to these Terms, and solely to the extent necessary to provide the Cloud Products to you, in providing or transmitting Your Data to us, you grant us a worldwide, limited term license to access, process and/or export Your Data for you to print in accord with your BarTender Cloud subscription license. Solely to the extent that reformatting Your Data for display and printing in a Cloud Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. To the extent necessary to affect the ends of this agreement, you agree to provide us with reasonable access to Your Data as reasonably necessary for our provision of Software and Services. You represent and warrant that you have all necessary rights in Your Data to provide them to us for such purposes.

5.2. Data Processing Agreement. Where customer information includes personal information and where you are considered a “Data Controller” and Seagull is a “Data Processor” as defined under the General Data Protection Regulation EU Regulation 2016/679 (“GDPR”), Seagull will negotiate a Data Processing Agreement covering the processing of such personal information and are incorporated by reference into the Terms. To the extent such a Data Processing Agreement is appropriate, it will be posted in your customer portal for your signature prior to Seagull providing you the BarTender Cloud subscription license(s). It is your responsibility to analyze the data you control to determine whether a Data Processing Agreement is necessary.

5.3. Sensitive Personal Information. You agree that if you do collect, process, or store any Sensitive Personal Information using the Services or Software, you accept the responsibility thereof. “Sensitive Personal Information” means an individual’s financial information, sexual preferences, medical, or health information protected under any health data protection laws, biometric data (for purposes of uniquely identifying an individual), personal information of children protected under any child data protection laws (such as the personal information defined under the US Children’s Online Privacy Protection Act (“COPPA”)) and any additional types of information included within this term or any similar term (such as “sensitive personal data” or “special categories of personal information”) as used in applicable data protection or privacy laws. 

5.4. Your Indemnity. Seagull fully acknowledges the fundamental rights and freedoms of natural persons and in particular their right to the protection of personal data as these are set out in Article I of the GDPR and the UK and Swiss related legislation. As defined by the GDPR, “[P]ersonal data’ means any information relating to an identified or identifiable natural person (‘data subject’).” You will defend, indemnify and hold us harmless (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) any breach by any user as set out in Section 2.1 A (Responsibility for End Users) or any claims or disputes brought by your End Users arising out of their use of Cloud Products, (ii) any breach of 5.2. (Data Processing Agreement); (iii) your breach (or alleged breach) of Section 5.3 (Sensitive Personal Information); or (iv) Your Data. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonable, necessary cooperation by us at your expense.

5.5. Removals and Suspension. We have no obligation to monitor any content uploaded to the Cloud Products. We respect the Intellectual Property Rights of others, and we expect our users to do the same. We will respond to clear notices of copyright infringement consistent with the Digital Millennium Copyright Act (“DMCA”). For reference, Seagull’s BarTender Cloud Copyright Information is posted here. If we deem such action necessary based on your violation of these Terms, including Our Policies, we may (1) remove Your Data from the Cloud Products or (2) suspend your access to the Cloud Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Products as described in this Section 5.5.

6. Using third-party products with the Cloud Products. We recognize that from time to time an End User may have need or desire to use third-party products with our Cloud Products, for example in the context of integrating the BarTender service with other publishing software. Because these selections of third-party products rest with you, we cannot assume responsibility for performance of the Cloud Products in conjunction with those third-party products. You are responsible for complying with the terms of all third-party vendors or services you select. You are solely responsible for your decision to permit any third-party provider or third-party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third-party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD-PARTY PROVIDERS OR VENDORS.

7. Your Warranty and Indemnification Obligations.

7.1. Warranty. By uploading your Content to the Services or Software, you agree that you have: (a) all necessary licenses and permissions to use and Share your Content; and (b) the rights necessary to grant the licenses in the Terms.

7.2. Terms of Defense and Indemnification. You will indemnify us and our subsidiaries, affiliates, officers, agents, employees, partners, and licensors from any claim, demand, loss, or damage, including reasonable attorneys’ fees, arising out of or related to your Content, BarTender Templates, your use of the Services or Software (as applicable), or your violation of the Terms. We have the right to control the defense of any claim, action, or matter subject to indemnification by you with counsel of our own choosing. You will fully cooperate with us in the defense of any such claim, action, or matter.

7.3. Trade Sanctions and Export Control Compliance. The Services and Software, and your use of them, are subject to laws, restrictions, and regulations of the United States and other jurisdictions that (a) govern the import, export, and use of the Services and Software; and (b) may prohibit us from providing the Services and Software to you without notice. By using the Services and Software, you agree to comply with all such laws, restrictions, and regulations, and you warrant that you are not prohibited from receiving the Services and Software by the laws of any jurisdiction.

8. Billing, renewals, and payment.

8.1. Billing. Except for No-Charge Products, all Cloud Products are offered on a monthly, annual or multi-year annual subscription basis.

8.2. Renewals. Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate, which may include account settings in the Cloud Products or customer account. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Cloud Product continuing to be offered and will be charged at the then-current rates.

8.3. Payment. You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. Other than as expressly set forth in Section 9 (Our return policy), Section 12.3 (Warranty Remedy), Section 14 (IP Indemnification) or Section 16 (Changes to these Terms), all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.

8.4. Taxes. Whether you purchased your subscription to the Cloud Product(s) from a Seagull Scientific Authorized Partner or from Seagull Scientific directly, you shall pay all fees associated with the Cloud Product subscription and any services purchased hereunder as set forth in the applicable Order. Except as expressly set forth herein, all fees are non-refundable once paid. Unless you provide, in a timely manner, your Authorized Partner or Seagull Scientific with a valid certificate of exemption or other evidence that items are not taxable, your invoice will include all applicable bank fees and taxes including, but not limited to, VAT, GST, sales tax, consumption tax and service tax. If any withholding tax is required by applicable law to be paid by you in relation to payments due to your Authorized Partner or Seagull Scientific hereunder, you will provide your Authorized Partner or Seagull Scientific as appropriate with official receipts and/or certificates from the appropriate taxing authorities to establish that any applicable taxes have been paid.

8.5. Delivery. We will deliver the login instructions for Cloud Products to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your BarTender Cloud subscription license is available. All deliveries under these Terms will be electronic.

9. Our return policy. As part of our commitment to customer satisfaction and without limiting the Performance Warranty in Section 12 (Warranties and Disclaimer), you may terminate your initial Order of a Cloud Product under these Terms, for no reason or any reason, by providing notice of termination to us no later than thirty (30) days after the Order date for such Cloud Product. In the event you terminate your initial Order under this Section 9, at your request (which may be made through your account with us), we will refund you the amount paid under such Order for any fully unused months. This termination and refund right applies only to your initial Order of the Cloud Product and only if you exercise your termination right within the period specified above, and does not apply to Additional Services. You understand that we may change this practice in the future in accordance with Section 16 (Changes to these Terms).

10. No contingencies on other products of future functionality. You acknowledge that the Cloud Products and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Cloud Products and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Products beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.11. Term and Termination.

11.1. Term. These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.

11.2. Termination for Cause. Please note you may lose access to your Content upon termination. Unless stated in any Additional Terms, we may, at any time, terminate or suspend your right to use and access the Services or Software if:

(A) you breach any provision of the Terms (or act in a manner that clearly shows you do not intend to, or are unable to, comply with the Terms);

(B) you fail to make the timely payment of fees for the Services or Software, if any;

(C) you physically, verbally, or through other means abuse, threaten, bully, or harass us or our personnel (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);

(D) you have repeatedly made complaints in bad faith or without a reasonable basis, and continue to do so after we have asked you to stop (in such circumstances, we may alternatively suspend or restrict your access to the Services or Software);

(E) we are required to do so by law (for example, where the provision of the Services or Software to you is, or becomes, unlawful); or,

(F) we elect to discontinue the Services or Software, in whole or in part (such as if it becomes impractical for us to continue offering Services in your region due to change of law).

11.3. Termination for Convenience. You may choose to stop using the Cloud Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us, but, unless you are exercising your right to terminate early pursuant to Section 9 (Our return policy), upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.

11.4. Effects of Termination. Upon any expiration or termination of these Terms, you must cease using all Cloud Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Cloud Products during the applicable Subscription Term. If we terminate the Terms, or your use of the Service(s) or Software for reasons other than for cause, or if you terminate the Services, we will make reasonable efforts to notify you at least thirty (30) days prior to termination via the email address you provide to us with instructions on how to retrieve your Content, we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 11.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.

11.5. Survival. The following provisions will survive any termination or expiration of these Terms: Sections 3.4 (Restrictions); 3.6 (Seagull Intellectual Property); 3.7 (BarTender Template Library); 5.4 (Your Indemnity); 6 (Using third-party products with the Cloud Products); 8.3 (Payment); 8.4 (Taxes); 11 (Term and Termination); 12.4 (Warranty Disclaimer); 13.2 (Liability Cap); 14 (IP Indemnification) (but solely with respect to claims arising from your use of Cloud Products during the Subscription Term); 15 (Dispute Resolution); and, 18 (General Provisions).

12. Warranties and Disclaimer.

12.1. Mutual Warranties. Each party represents and warrants that it has the legal power and authority to enter into these Terms.

12.2. Our Warranties. We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Cloud Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).

12.3. Warranty Remedy. We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 12.

12.4. WARRANTY DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 12, ALL CLOUD PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE CLOUD PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.

13. Limitation of Liability.

13.1. Consequential Damages Waiver. EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.

13.2. Liability Cap. EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM. IN THE CASE WHERE NO AMOUNT WAS PAID FOR THE SOFTWARE OR SERVICE GIVING RISE TO THE CLAIM, SEAGULL SCIENTIFIC AND ITS LICENSORS’ ENTIRE LIABILITY TO YOU UNDER THIS AGREEMENT SHALL NOT EXCEED US$ 5.00.

13.3. Excluded Claims. “Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, or (3) your breach of Section 3.4 (Restrictions).

13.4. Nature of Claims and Failure of Essential Purpose. The parties agree that the waivers and limitations specified in this Section 13 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.

14. IP Indemnification. We will defend you against any claim brought against you by a third party alleging that the Cloud Products, when used as authorized under these Terms, infringe any third-party patent, copyright or trademark, or misappropriates any third-party trade secret enforceable in any jurisdiction that is a signatory to the Berne Convention (a “Claim”), and we will indemnify you and hold you harmless against any damages and costs finally awarded on the Claim by a court of competent jurisdiction or agreed to via settlement executed by us (including reasonable attorneys’ fees), provided that we have received from you: (a) prompt written notice of the Claim (but in any event notice in sufficient time for us to respond without prejudice); (b) reasonable assistance in the defense and investigation of the Claim, including providing us a copy of the Claim, all relevant evidence in your possession, custody, or control, and cooperation with evidentiary discovery, litigation, and trial, including making witnesses within your employ or control available for testimony; and (c) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the Claim. If your use of the Cloud Products is (or in your opinion is likely to be) enjoined, whether by court order or by settlement, or if we determine such actions are reasonably necessary to avoid material liability, we may, at our option and in our discretion: (i) procure the right for your continued use of the Cloud Product in accordance with these Terms; (ii) substitute a substantially functionally similar Cloud Product; or (iii) terminate your right to continue using the Cloud Product and refund any prepaid amounts for the terminated portion of the Subscription Term. Our indemnification obligations above do not apply: (1) if the total aggregate fees we receive with respect to your subscription to a Cloud Product in the twelve (12) month period immediately preceding the Claim is less than US$ 10,000; (2) if the Cloud Product is modified by any party other than us, but solely to the extent the alleged infringement is caused by such modification; (3) if the Cloud Product is used in combination with any non-Seagull product, software, service or equipment, but solely to the extent the alleged infringement is caused by such combination; (4) to unauthorized use of Cloud Products; (5) to any Claim arising as a result of (y) Your Data or circumstances covered by your indemnification obligations in Section 5.4 (Your Indemnity) or (z) any third-party deliverables or components contained with the Cloud Products or (6) if you settle or make any admissions with respect to a Claim without our prior written consent. THIS SECTION 14 (IP INDEMNIFICATION) STATES OUR SOLE LIABILITY AND YOUR EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH ANY CLOUD PRODUCT OR OTHER ITEMS WE PROVIDE UNDER THESE TERMS.

15. Dispute Resolution.

THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THIS SECTION 15 (DISPUTE RESOLUTION) IN ITS ENTIRETY GOVERN THE RESOLUTION OF DISPUTES. PLEASE READ THEM CAREFULLY. IF YOU DO NOT AGREE WITH THE MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER IN THE TERMS, PLEASE DO NOT USE THE SERVICES OR SOFTWARE.

15.1. Informal Resolution. If you have any concern or dispute, you agree to first try to resolve the dispute informally by contacting us. If a dispute is not resolved within thirty (30) days of receipt by us, any resulting legal actions must be resolved through final and binding arbitration, including any question of whether arbitration is required, except that you may assert claims in small claims court if your claims qualify. Claims related to the Terms, Services, or Software are permanently barred if not brought within one year of the event resulting in the claim.

15.2. Governing Law; Jurisdiction. These Terms will be governed by and construed in accordance with the applicable laws of the State of Washington, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal court in Bellevue, Washington, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Bellevue, Washington, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under these Terms, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.

15.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 15.1 (Informal Resolution) and 15.2 (Governing Law; Jurisdiction), nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

15.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.

16. Changes to these Terms. We may modify, update, or discontinue the Services or Software (including any portions or features) at any time, without liability to you or anyone else. If we discontinue the Services or Software in its entirety, we will use reasonable commercial efforts to allow you to transition your Content, and we may provide you with a pro-rata refund for any unused fees for that Service or Software that you prepaid. We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 18.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.

16.1. Paid Subscriptions. Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew pursuant to Section 8.2 (Renewals). Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud Products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.

16.2. Our Policies. We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.

17. Changes to the Cloud Products. You acknowledge that the Cloud Products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Products and Additional Services under existing subscription licenses, we can discontinue any Cloud Products, any Additional Services, or any portion or feature of any Cloud Products for any reason at any time without liability to you.

18. General Provisions.

18.1. Notices. Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by email to: [email protected], or post to Seagull Scientific, Inc., 15325 SE 30th Place, Suite 100, Bellevue, WA 98007, USA, Attn: Legal Department. Your notices to us will be deemed given upon receipt.

18.2. Force Majeure. Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.

18.3. Assignment. You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.

18.4. Seagull Scientific’s Customer List. From time to time, the efficacy of the Seagull Scientific’s BarTender Cloud Products might be shown by the experience of others using the same Seagull Scientific BarTender Cloud Product. You agree that Seagull Scientific may disclose your entity as a customer of Seagull Scientific and use your entity’s name and logo on Seagull Scientific’s web site and in Seagull Scientific’s promotional materials. Seagull Scientific will not infer your endorsement of our BarTender Cloud Products. We will simply acknowledge that you are a customer. We will promptly stop disclosing your entity as a customer of ours and remove your entity’s name and logo from our Customer List upon your request. Submit requests at: https://www.seagullscientific.com/legal/promotion-status-update/.

18.5. Entire Agreement. These Terms are the entire agreement between you and us relating to the Cloud Products and any other subject matter covered by these Terms, and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.

18.6. Conflicts. In event of any conflict between the main body of these Terms and Our Policies, Our Policies will control with respect to their subject matter.

18.7. Waivers; Modifications. No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 16 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.

18.8. Interpretation. As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.

18.9. Severability. If any provision of the Terms is held invalid or unenforceable for any reason, the remainder of the Terms will continue in full force and effect.

18.10. No Waiver. Our failure to enforce or exercise any provision of the Terms is not a waiver of that provision.

 

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