SeaUrchin.IO — Product Terms

These terms and conditions (these “Terms”) apply to the Services (as defined below) provided by SeaUrchin.IO, Inc. (“SeaUrchin.IO,” “our,” or “we”) via SeaUrchin.io (the “Site”). By accessing or using the Services (as defined below), you agree to be bound by these Terms. If you do not agree to these Terms, do not use any of the Services. The “Effective Date” of these Terms is the date you first access any of the Services.

If you are accessing the Services in your capacity as an employee, consultant or agent of a company (or other entity), you represent that you are an employee, consultant or agent of such company (or other entity) and you have the authority to agree (and be legally bound) on behalf of such company (or other entity) to all of the terms and conditions of these Terms.

For the purpose of these Terms, you and, if applicable, such company (or other entity) constitutes “Customer” or “you”.

SeaUrchin.IO reserves the right to change or modify any of the terms and conditions contained in these Terms (or any policy or guideline of SeaUrchin.IO) at any time and in its sole discretion by providing notice that these Terms have been modified. Such notice may be provided by sending an email, posting a notice on the Site, posting the revised Terms on the Site and revising the date at the top of these Terms or such other form of notice as determined by SeaUrchin.IO. Any changes or modifications will be effective 30 days after providing notice that these Terms have been modified (the “Notice Period”). Your continued use of any of the Services following the Notice Period will constitute your acceptance of such changes or modifications. Therefore, you should review these Terms whenever you access the Services and at least every 30 days to make sure that you understand the terms and conditions that will apply to your use of the Services.

These Terms form a binding agreement between you and SeaUrchin.IO.

Privacy

Please see SeaUrchin.IO’s privacy policy at https://seaurchin.io/privacy-policy for information about how SeaUrchin.IO collects, uses and discloses information about its Authorized Users.

Definitions

Authorized User” means any employee, contractor, agent, representative, or other individual expressly authorized by Customer to access the Services using the Customer’s account.

End Customer” means an entity that acquires the Integrated Products for its internal use, and not for resale, lease, loan or redistribution.

Intellectual Property Rights” means all trade secret rights, patent rights, copyrights, trademark rights, moral rights, including any applications, continuations or other registrations with respect to any of the foregoing, under the laws or regulations of any foreign or domestic governmental, regulatory or judicial authority.

Service Level Standards” means the service levels located at https://seaurchin.io/service-level-standards or such other terms to which SeaUrchin.IO has expressly agreed to in writing. The Service Level Standards are incorporated into these Terms by this reference.

Services” means the software-as-a-service services provided by SeaUrchin.IO through the Site.

Subscription Fee” means the monthly, quarterly or annual fee you must pay to SeaUrchin.IO in exchange for your rights to the Services as determined by the SeaUrchin.IO package you selected.

Subscription Period” means the monthly, quarterly or annual period, during which you have rights to access and use the Services, as determined by the SeaUrchin.IO package you selected.

Services

Subject to the terms and conditions of these Terms, SeaUrchin.IO grants to Customer a limited, non-transferable, non-exclusive and non-sublicenseable right and license, during the term of this Agreement, to use the Services solely for Customer’s internal business purposes.

Customer grants to SeaUrchin.IO the right to (a) monitor and capture Authorized Users’ search patterns/data with respect to Customer’s products and services (“Customer Data”) in order to perform the Services, (b) transfer the Customer Data to SeaUrchin.IO’s servers for processing, analysis, retention, and visualization, and (c) host and store the Customer Data on SeaUrchin.IO’s servers.

Upon SeaUrchin.IO’s receipt of the applicable Subscription Fees, SeaUrchin.IO will provide Customer with an access code so that Customer may access the Services (and download the software components of the Services (the “Software”)).

Restrictions

Except as expressly authorized by this Agreement, Customer may not (and must ensure that all Authorized Users do not): (a) modify, disclose, alter, translate or create derivative works of the Services (or any components thereof); (b) license, sublicense, resell, distribute, lease, rent, lend, transfer, assign or otherwise dispose of the Services (or any components thereof); (c) disassemble, decompile or reverse engineer the Software; (d) use the Services to store or transmit any viruses, software routines or other code designed to permit unauthorized access, to disable, erase or otherwise harm software, hardware or data, or to perform any other harmful actions; (e) copy, frame or mirror any part or content of the Services; (f) build a competitive product or service, or copy any features or functions of the Services; (g) interfere with or disrupt the integrity or performance of the Services; (h) attempt to gain unauthorized access to the Services or their related systems or networks; (i) disclose to any third party any performance information or analysis relating to the Services; (j) use the Software, or allow the transfer, transmission, export or re-export of the Software or any portion thereof in violation of any export control laws or regulations administered by the U.S. Commerce Department, OFAC, or any other government agency; (k) remove, alter or obscure any proprietary notices in or on the Services including copyright notices; or (l) cause or permit any third party to do any of the foregoing.

Ownership and Reservation of Rights

As between Customer and SeaUrchin.IO, SeaUrchin.IO owns all right, title and interest in and to the Services (and any and all modifications to or derivative works of the Services), the Feedback (as defined below) and any and all Intellectual Property Rights embodied in or related to the Services, and the aggregated, anonymized data related to usage statistics for the Services. SeaUrchin.IO reserves all rights not expressly granted in this Agreement, and no licenses are granted by SeaUrchin.IO to Customer under this Agreement, whether by implication, estoppel or otherwise, except as expressly set forth in this Agreement.

Fees and Payment Terms

In exchange for the Customer’s rights to access and use the Services, Customer will pay to SeaUrchin.IO the applicable Subscription Fees for the SeaUrchin.IO subscription package chosen by the Customer. The Subscription Fees are made up of the fixed annual, quarterly or monthly payment (whichever is set forth in the package you selected) that is due and payable in advance.

SeaUrchin.IO, at its sole discretion, may modify its pricing during any Subscription Period and such pricing changes will be effective as of the directly subsequent Subscription Period. SeaUrchin.IO will not be obligated to issue any refunds for Subscription Fees paid.

Unless SeaUrchin.IO states otherwise, all payments must be made (a) in U.S. Dollars, and (b) by payment card via an authorized SeaUrchin.IO payment processor. Customer hereby (i) authorizes SeaUrchin.IO (or its authorized payment processor) to charge the payment card number provided to SeaUrchin.IO, and (ii) represents and warrants that Customer is authorized to use and have fees charged to the payment card number provided to SeaUrchin.IO. Customer understands that it may withdraw its authorization by contacting SeaUrchin.IO at contact@seaurchin.io.

Interest on any late payments will accrue at the rate of 1.5% per month, or the highest rate permitted by law, whichever is lower, from the date such amount is due until the date such amount is paid in full. Customer will be responsible for, and will pay all sales and similar taxes, all license fees and similar fees levied upon the provision of the Services excluding only taxes based solely on SeaUrchin.IO’s net income. Customer will indemnify and hold SeaUrchin.IO harmless from and against any and all such taxes and related amounts levied upon the provision of the Services and any costs associated with the collection or withholding thereof, including penalties and interest.

Professional Services

In the event that Customer elects to have SeaUrchin.IO perform any integration, design, development, operational and/or other professional services (“Professional Services”), the parties will enter into a separate agreement governing the provision of such Professional Services.

Support and Service Level Standards

During the term of these Terms, SeaUrchin.IO will use commercially reasonable efforts to: (a) provide support and (b) meet the Service Level Standards.

Required Components

Customer acknowledges and agrees that the operation of the Services is dependent upon Customer possessing and maintaining the hardware and software listed at https://seaurchin.io/requirements (and such list may be updated from time-to-time by SeaUrchin.IO) (“Required Components”). The list of the Required Components is incorporated into this Agreement by reference.

Representations, Warranties and Remedies

Each party represents and warrants that (a) it is validly existing and in good standing under the laws of the place of its establishment or incorporation, (b) it has full corporate power and authority to execute, deliver and perform its obligations under this Agreement. Further, Customer represents and warrants that: (i) it will not use deceptive, misleading, illegal or unethical practices in fulfilling its obligations under these Terms, (ii) it will use the Services and perform its obligations under these Terms in accordance with all applicable laws, rules, and regulations, and (iii) each of Authorized Users has consented to the monitoring, capture, use, disclosure and storage of each such user’s search patterns/data with respect to Customer’s products and services.

Disclaimer

YOUR USE OF THE SERVICES IS AT YOUR OWN RISK. EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES SET FORTH ABOVE, THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, SEAURCHIN.IO DISCLAIMS ANY AND ALL REPRESENTATIONS OR WARRANTIES (EXPRESS OR IMPLIED, ORAL OR WRITTEN) WITH RESPECT TO THESE TERMS, THE SERVICES AND ANY THIRD PARTY SERVICES OR SOFTWARE, WHETHER ALLEGED TO ARISE BY OPERATION OF LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, BY COURSE OF DEALING OR OTHERWISE, INCLUDING ANY AND ALL: (A) WARRANTIES OF MERCHANTABILITY; (B) WARRANTIES OF FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT SEAURCHIN.IO KNOWS, HAS REASON TO KNOW, HAS BEEN ADVISED, OR IS OTHERWISE AWARE OF ANY SUCH PURPOSE); OR (C) WARRANTIES OF NONINFRINGEMENT OR CONDITION OF TITLE. SEAURCHIN.IO DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SERVICES WILL BE ACCURATE OR MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, CUSTOMER ACKNOWLEDGES AND AGREES THAT SEAURCHIN.IO MAY MODIFY THE FEATURES OF THE SERVICES FROM TIME-TO-TIME AT SEAURCHIN.IO’S SOLE DISCRETION.

Indemnification Obligations

Customer, at its sole expense, will defend SeaUrchin.IO and its directors, officers, employees and agents from and against any actual or threated suits, actions, proceedings (at law or in equity), claims, damages, payments, deficiencies, fines, judgments, settlements, liabilities, losses, costs and expense (including reasonable attorneys’ fees, costs, penalties, interest and disbursements) arising from or related to Customer’s violation (or alleged violation) of these Terms.

Limitation of Liability

TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT WILL SEAURCHIN.IO BE LIABLE TO CUSTOMER, AUTHORIZED USERS, OR ANY THIRD PARTY FOR INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, ARISING OUT OF OR RELATED TO THESE TERMS, THE SERVICES AND/OR THE THIRD PARTY SOFTWARE OR SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE, WHETHER ACTIVE, PASSIVE OR IMPUTED), PRODUCT LIABILITY, STRICT LIABILITY OR OTHER THEORY), EVEN IF SEAURCHIN.IO HAS BEEN ADVISED OR IS OTHERWISE AWARE OF THE POSSIBILITY OF SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO CUSTOMER. FURTHER, IN NO EVENT WILL SEAURCHIN.IO’S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER DURING THE SUBSCRIPTION PERIOD WITHIN WHICH THE DAMAGES OCCURRED. MULTIPLE CLAIMS WILL NOT EXPAND THIS LIMITATION. THIS LIMITATION WILL BE GIVEN FULL EFFECT EVEN IF ANY REMEDY SPECIFIED IN THESE TERMS IS DEEMED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. FURTHER, NOTWITHSTANDING ANY TERMS TO THE CONTRARY IN THIS AGREEMENT, (A) THE SOLE AND EXCLUSIVE REMEDY FOR ANY FAILURE OF ANY SERVICE LEVEL STANDARDS ARE THE CREDITS PROVIDED UNDER THESE TERMS UNLESS SUCH FAILURE IS DUE TO SEAURCHIN.IO’S WILLFUL MISCONDUCT AND (B) SEAURCHIN.IO WILL NOT BE LIABLE FOR ANY DISCLOSURE OF, UNAUTHORIZED USE OF AND/OR UNAUTHORIZED ACCESS TO ANY CUSTOMER DATA.

Term, Termination and Effect of Termination

Unless earlier terminated as set forth in these Terms, the term of these Terms will be for the Subscription Period and thereafter these Terms will automatically renew for successive periods equivalent to the Subscription Period.

Customer may terminate these Terms at any time.

Either party may terminate these Terms for cause: (a) if the other party breaches these Terms and does not remedy such failure within 30 days after its receipt of written notice of such breach; or (b) if the other party terminates its business activities or becomes insolvent, admits in writing to inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority. SeaUrchin.IO may terminate these Terms, for cause, if SeaUrchin.IO reasonably believes that Customer has breached any of restrictions of use of the Services. Further, SeaUrchin.IO may suspend use of the Services (or any portion thereof) without liability if SeaUrchin.IO is required by any applicable laws to suspend the Services, and SeaUrchin.IO may terminate these Terms prior to any renewal of a Subscription Period with no less than 90 days’ notice to Customer.

Upon any expiration or termination of these Terms: (a) all rights and licenses granted to Customer under these Terms will immediately terminate; (b) Customer will immediately pay to SeaUrchin.IO all amounts due and payable up to the effective date of termination of these Terms; and (c) Customer will promptly return to SeaUrchin.IO all of SeaUrchin.IO’s confidential information then in its possession or destroy all copies of Confidential Information of such other party, at such other party’s sole discretion and direction. Notwithstanding any terms to the contrary in these Terms, this paragraph and sections labeled “Definitions,” “Restrictions,” “Ownership and Reservation of Rights,” “Fees and Payment Terms,” “Disclaimer,” “Indemnification Obligations,” “Limitation of Liability,” and “General Provisions” will survive any termination of these Terms, and no refunds will be issued upon any termination of these Terms.

Dispute Resolution; Arbitration

PLEASE READ THE FOLLOWING PROVISIONS CAREFULLY BECAUSE THEY REQUIRE CUSTOMER AND SEAURCHIN.IO TO ARBITRATE DISPUTES AND LIMITS THE MANNER IN WHICH BOTH PARTIES CAN SEEK RELIEF.

Customer and SeaUrchin.IO will arbitrate any dispute, claim, or controversy arising from or related to these Terms or the Services, except that neither Customer nor SeaUrchin.IO is required to arbitrate any dispute in which either party seeks equitable and/or other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS CUSTOMER AND SEAURCHIN.IO FROM SUING IN COURT OR FROM HAVING A JURY TRIAL. Customer and SeaUrchin.IO will notify each other of any dispute within 30 days of when it arises and attempt informal resolution before any demand for arbitration. Arbitration will be conducted confidentially in San Francisco, California, by a single arbitrator in accordance with the rules of JAMS (or its successor). Except as expressly provided in these Terms, the arbitrator has the authority to grant any remedy that would otherwise be available in court. The arbitrator will render a written opinion including findings of fact and law, and the award and determination of the arbitrator will bind the parties and will not be subject to appeal. Judgment may be entered upon the award of the arbitrator in any court of competent jurisdiction. The parties will equally share the expenses of the arbitration unless the arbitrator determines to apportion fees and expenses differently. To the fullest extent permitted by applicable law, WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, NO ARBITRATION OR CLAIM UNDER THESE TERMS WILL BE JOINED TO ANY OTHER ARBITRATION OR CLAIM, INCLUDING ANY ARBITRATION OR CLAIM INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE SERVICES, AND NEITHER CUSTOMER NOR SEAURCHIN.IO WILL COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.

Customer can choose to reject this agreement to arbitrate (“opt out”) by sending SeaUrchin.IO a written opt-out notice (the “Opt-Out Notice”) to contact@seaurchin.io within 30 days after the date Customer accepts these Terms for the first time. The Opt-Out Notice must state that Customer does not agree to this agreement to arbitrate and must include Customer’s name, address, phone number and email address. Customer must sign the Opt-Out Notice for it to be effective. This procedure is the only way Customer can opt-out of this agreement to arbitrate. If Customer opts-out of this agreement to arbitrate, all other parts of these Terms will continue to apply.

Export Matters

Customer represents and warrants that Customer is not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom SeaUrchin.IO is legally prohibited to provide the Services. Customer may not use the Services for the development, design, manufacture, production, stockpiling or use of nuclear, chemical or biological weapons, weapons of mass destruction or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide administrative access to the Services to any person (including any natural person or government or private entity ) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations.

General Provisions

These Terms (including all terms and conditions incorporated into these Terms by reference) set forth the entire agreement and understanding of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements, proposals, negotiations, conversations, discussions and understandings, written or oral, with respect to such subject matter and all past dealing or industry custom.

Neither party will, for any purpose, be deemed to be an agent, franchisor, franchise, employee, representative, owner or partner of the other party, and the relationship between the parties will only be that of independent contractors. Neither party will have any right or authority to assume or create any obligations or to make any representations or warranties on behalf of any other party, whether express or implied, or to bind the other party in any respect whatsoever.

These Terms will be governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without resort to its conflict of law provisions. The state or federal court in San Francisco County, California will be the jurisdiction in which any suits should be filed if they relate to this Agreement. If a party initiates any proceeding regarding this Agreement, the prevailing party to such proceeding is entitled to reasonable attorneys’ fees and costs for claims arising out of this Agreement.

Customer consents to SeaUrchin.IO’s use of Customer’s name and logo on the Site, identifying Customer as a customer of SeaUrchin.IO and describing Customer’s use of the Services notwithstanding any terms to the contrary in this Agreement. Customer agrees that SeaUrchin.IO may issue a press release identifying Customer as customer of SeaUrchin.IO.

Customer acknowledges and agrees that SeaUrchin.IO uses third party hosting infrastructures in connection with the Services (“Third Party Services”), and SeaUrchin.IO disclaims any liability with respect to the Third Party Services. Customer agrees to abide by the terms and conditions provided by SeaUrchin.IO with respect to the Third Party Services.

Neither this Agreement nor any right or duty under this Agreement may be transferred, assigned or delegated by Customer, by operation of law or otherwise, without the prior written consent of SeaUrchin.IO, and any attempted transfer, assignment or delegation without such consent will be void and without effect. SeaUrchin.IO may freely transfer, assign or delegate this Agreement or its rights and duties under this Agreement. Subject to the foregoing, this Agreement will be binding upon, will inure to the benefit of the parties and their respective representatives, heirs, administrators, successors and permitted assigns.

No modification, addition or deletion, or waiver of any rights under these Terms will be binding on a party unless clearly understood by the parties to be a modification or waiver and signed by a duly authorized representative of each party. No failure or delay (in whole or in part) on the part of a party to exercise any right or remedy hereunder will operate as a waiver thereof or effect any other right or remedy. All rights and remedies hereunder are cumulative and are not exclusive of any other rights or remedies provided hereunder or by law. The waiver of one breach or default or any delay in exercising any rights will not constitute a waiver of any subsequent breach or default.

SeaUrchin.IO may choose to electronically deliver all communications with Customer, which may include email to the email address Customer provides to SeaUrchin.IO. SeaUrchin.IO’s electronic communications to Customer may transmit or convey information about action taken on Customer’s request, portions of Customer’s request that may be incomplete or require additional explanation, any notices required under applicable law and any other notices. Customer agrees to do business electronically with SeaUrchin.IO and to receive electronically all current and future notices, disclosures, communications and information and that the aforementioned electronic communications satisfy any legal requirement that such communications be in writing. An electronic notice will be deemed to have been received on the day of receipt as evidenced by such email.

If any provision of these Terms is invalid, illegal, or incapable of being enforced by any rule of law or public policy, all other provisions of these Terms will nonetheless remain in full force and effect so long as the economic and legal substance of the transactions contemplated by these Terms is not affected in any manner adverse to any party. Upon such determination that any provision is invalid, illegal, or incapable of being enforced, the parties will negotiate in good faith to modify these Terms so as to effect the original intent of the parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled.

Except for payments due under these Terms, neither party will be responsible for any failure to perform or delay attributable in whole or in part to any cause beyond its reasonable control including, but not limited to, acts of God (fire, storm, floods, earthquakes, etc.), acts of terrorism, civil disturbances, disruption of telecommunications, disruption of power or other essential services, interruption or termination of any services provided by any service providers used by SeaUrchin.IO, labor disturbances, vandalism, cable cut, computer viruses or other similar occurrences, or any malicious or unlawful acts of any third party (a “Force Majeure Event”).