Master SaaS Agreement

This Master SAAS Agreement (this “Agreement”) is entered into by and between Seasoft Security Solutions, LLC (“Seasoft”) and the party that has agreed to be bound by this Agreement (“you” “your” or “Customer”). This Agreement includes any and all Order Forms (as that term is defined below) which are incorporated herein by reference.

By signing an Order Form referencing this Agreement, you accept and agree to be bound and abide by the terms of this Agreement as of the date referenced in the Order Form (the “License Effective Date”).  Seasoft may revise the terms of this Agreement at any time by providing you with notice at the email address you provide at the time of your registration or by posting a revised version of these terms to the Seasoft website URL found in your Order Form. Any such change shall become effective on your next renewal date unless an earlier date is otherwise agreed upon by the parties.  Your continued use of the Services subsequent to such date shall be deemed as your acceptance of any modified terms or conditions.  If you do not wish to be bound by this Agreement, as may be amended, you may not use or continue to use the Services. 

 Each capitalized term is as defined following its first use or as defined in Section 9 below.

 1. License; Term; Renewal; and Termination:

Subject to full and prompt payment by Customer, and subject to the terms and conditions of this Agreement, Seasoft hereby grants to Customer a non-exclusive, non-transferable, non-sublicensable license to access and use the Services by its Authorized Users, solely for its own internal business purposes during the license term as specified in an Order Form.   The term of this Agreement starts on the License Effective Date and continues for an initial term as specified in an Order Form  (the “Initial Term”) and thereafter, the term of this Agreement shall automatically renew for successive renewal terms (each, a “Renewal Term”) each of the same length as the Initial Term or as may be otherwise specified in an Order Form unless and until this Agreement is terminated at the end of the Initial Term or any Renewal Term by written notice by either party to the other at least thirty (30) days prior to expiration of the Initial Term or any such Renewal Term.

This Agreement and/or any Order Form may only be terminated prior to the expiration of the Initial Term or then current Renewal Term as follows:

(i) Either party may terminate this Agreement if the other party breaches any material provision of this Agreement and fails, within thirty (30) days after receipt of notice of such breach to correct such breach.

(ii) Either party may terminate the Agreement immediately upon written notice in the event: (A) the other party commences or becomes the subject of any bankruptcy, insolvency, or equivalent case or proceeding; (B) the other party makes a general assignment for the benefit of its creditors; (C) a trustee or receiver is appointed for the other party, or for any of its property; or (D) any petition by or on behalf of the other party is filed to take advantage of any debtor’s act or to reorganize under the bankruptcy or similar laws, which petition is not removed within sixty (60) days after filing.

(iii) Seasoft may, in its sole discretion, terminate the Agreement, or suspend Customer’s access to the Services, immediately upon written notice in the event of (A) any unauthorized or unlawful use by Customer; (B) any third party gaining access to the Services, directly or indirectly, through or as a result of Customer’s use of the Services; (C) Seasoft’s determination, at its sole reasonable discretion, that Customer’s or its Authorized User’s use of the Services results in a threat to the security of the Services, Seasoft’s other customers or users or any third parties;  (D) Customer’s failure to make payments when due or (E) Customer is in material breach and has not cured within the applicable period.

If this Agreement, Order Form or the associated license is not renewed or is terminated by either party, then Customer will cease all use of the Services, will no longer have access to the Services and shall return or destroy all copies of the user manuals and documentation for the Services (“Seasoft Materials”).

 2. Fees:

The Fees payable by Customer shall be as set forth in an Order Form. Such Fees shall be due and payable within thirty (30) days from the License Effective Date and on each yearly anniversary of said License Effective Date. The Fees under an Order Form may not be increased by more than ten (10%) percent per year over the previous year for the configuration specified in an Order Form; unless sixty (60) days’ advance written notice is given to Customer.  All Fees are payable in United States Dollars.   In the event that Seasoft does not receive payment of any Fees within the time frames above, interest shall accrue at the maximum rate allowed by law and Seasoft reserves the right, in addition to any other rights and in its sole discretion, to terminate access to the Services by such Customer and/or stop any and all Services being performed.

Customer may add additional Directory Users or additional features to the Services, if applicable, during the Term at the then current list price for the users or features, as applicable.

 3. Taxes:

There shall be added to the Fees or other fees payable by Customer on the applicable invoice the amount of any applicable taxes, however designated or levied, based upon such Fees, or other fees under this Agreement, including any Federal, State or Local excise, sales, use or personal property taxes, or taxes designated or levied by any foreign government. Payment of all such taxes shall be the sole responsibility of the Customer.

 4. Warranties; Limitation of Liability:

Seasoft warrants that it has the right to license the Services and that to Seasoft’s knowledge the Services do not infringe on any U.S. patent, copyright or other intellectual property rights of any third party. If any third party asserts a claim that Customer’s use of the Services under and in accordance with this Agreement infringes upon any such U.S. patent, copyright or other intellectual property right of a third party, Seasoft shall defend against such third party claim, and Seasoft’s sole obligation as to Customer shall be to, at Seasoft’s option, either: (1) obtain for Customer the right to continue using the Services; (2) replace or modify the affected portion of the Services so that the use thereof becomes non-infringing or otherwise lawful; or (3) terminate this Agreement and refund to Customer any prepaid but unused Fees as of the date of termination.  Seasoft will have no such obligation if: (a) the claim relates to, or results from, Customer's or any third party's modification(s) of the Services or use of the Services in combination with any third party Services, whether or not such third party Services was supplied or recommended by Seasoft; or (b) Customer does not give Seasoft prompt written notice of any such claim.  Seasoft does not warrant that the Services will be effective or protect against all possible security threats, viruses, malware, ransomware or similar, or that the operation of the Services will be fail-safe, uninterrupted or free from errors or defects.

EXCEPT FOR THE FOREGOING WARRANTIES THE SERVICES AND SUPPORT FOR THE SERVICES ARE PROVIDED “AS IS”.  THE FOREGOING WARRANTIES SHALL BE IN LIEU OF ANY OTHER WARRANTY, EXPRESSED OR IMPLIED, ALL OTHER WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE ARE ALL HEREBY EXPRESSLY DISCLAIMED.  EXCEPT AS EXPRESSLY SET FORTH HEREIN, SEASOFT AND ITS SUBSIDIARIES, AFFILIATES AND ASSOCIATED PARTIES SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY WITH RESPECT TO ANY LIABILITY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY, BY THE SERVICES, ITS USE OR OPERATION.  FURTHER, IN NO EVENT SHALL SEASOFT, ITS SUBSIDIARIES, AFFILIATES OR ASSOCIATED PARTIES BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR OTHER INDIRECT DAMAGES, INCLUDING LOSS OF REVENUE OR INCOME, LOSS OF PROFITS, LOSS OF REPUTATION OR LOSS OF DATA, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE  SERVICES OR THE DELAY OR INABILITY TO USE THE SERVICES OR SEASOFT’S SERVICES OR OTHERWISE ARISING OUT OF THIS AGREEMENT, EVEN IF SEASOFT OR ANY OF ITS AFFILIATES, SUBSIDIARIES OR ASSOCIATED PARTIES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 

Seasoft’s entire liability for any claim, loss, damage, or expense (together “Damages”) from any cause whatsoever regardless of the form of action, whether in contract, tort, negligence, strict liability or otherwise shall be limited to direct, proven damages in an amount not to exceed for all such claims, the amount actually paid by Customer to Seasoft under this Agreement for the Services at issue for the one (1) year period immediately preceding the event(s) giving rise to the claim.   Such dollar limitations shall not apply to Seasoft’s obligation with respect to defending infringement actions as described above. In no event will Seasoft be liable for Damages during such time as Customer is not under an active license or if the Customer made use of the Services not in accordance with Seasoft’s specifications and or the instructions for the Services.  No action regardless of form, may be brought by either party more than one year after the cause of action has accrued, except that any action by Seasoft for non-payment of amounts owed it by Customer hereunder may be brought within the applicable period permitted by law.

Customer agrees to indemnify, defend and hold harmless Seasoft against any and all third party claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with a claim alleging that use of the Customer Information (as defined below) infringes the rights of, or has caused harm to, a third party.

Customer represents and warrants (1) it will provide and maintain all necessary hardware and third party software licenses and telecommunications connections necessary for Customer to utilize the Services; (2) it will provide Seasoft with the requisite Customer Information and any other information or assistance reasonably requested by Seasoft as may be necessary for Seasoft to perform its obligations hereunder; and (3) that Customer has obtained all necessary rights, permissions and authorizations as may be necessary to provide the Customer Information to Seasoft, including, but not limited to, with respect to information regarding Authorized Users, Directory Users and any integrations or access to Third Party applications.

Customer is responsible for (a) the accuracy and quality of Customer Information, the means by which you acquired Customer Information, and obtaining appropriate usage rights with respect to Customer Information (b) ensuring Authorized Users’ use the Services only in accordance with this Agreement and comply with the current version of Seasoft’s User Terms of Service and acceptable use policies found on its website for the Services; (c) all activities that occur under its Authorized Users’ usernames, passwords, accounts or access credentials as a result of its Authorized Users’ access to the Services and (d) maintaining the security and confidentiality of all account, username, password and access credentials.

5. Services and Seasoft Materials:

Seasoft will provide Customer with access to the Services along with Seasoft Materials. The Services, Seasoft Materials and all related intellectual property rights shall be and remain the property of Seasoft or its suppliers, subject to Customer’s right to use such materials pursuant to this Agreement, including the limitations on Customer’s use thereof contained in paragraph 6; Customer has no other right, title or interest in such items. All right, title and interest in and to the Customer Information shall belong to Customer.   

Third-Party and Open Source Products. To the extent Customer elects to integrate the Services with products or services provided by a third party (“Third Party Products”) Customer will be solely responsible for obtaining a license and any necessary access rights for such integrations and Seasoft shall have no liability with respect to the performance or non-performance of such Third Party Products. Third-Party Products are not Services under this Agreement. The Services may contain features designed to interoperate with Third-Party Products. Seasoft may cease providing such features if the Third-Party Product provider ceases to make the Third-Party Products available for interoperation with the Services, without entitling you to any refund, credit, or compensation. To the extent the Services incorporate any open source components, Customer’s use of such open source materials shall be subject to their applicable license terms. Seasoft shall have no liability for any open source software and makes no representations or warranties of any kind for any open source software. 

6. Confidentiality and Limitations on Use by Customer:

a. “Confidential Information” means any and all business or technical information or data in any form or medium, tangible or intangible, of the disclosing party which is disclosed, either orally or in writing, by the disclosing party to the receiving party, provided that it is identified by the disclosing party in writing as confidential at the time of, or just after, disclosure. 

b. Each party shall take all reasonable steps to prevent the disclosure of the other party’s Confidential Information in violation of the Agreement, which shall be no less than the steps it takes to protect its own Confidential Information.

c. Notwithstanding the foregoing, Confidential Information may be disclosed as required by any governmental agency, provided that before disclosing such information the disclosing party must provide the non-disclosing party with sufficient advance notice of the agency’s request for the information to enable the non-disclosing party to exercise any rights it may have to challenge or limit the agency’s authority to receive such Confidential Information.

d. Confidential Information shall not include information that (1) is or becomes publicly available through no breach or omission of the receiving party; (2) was lawfully in the possession of the receiving party prior to the disclosure of by the disclosing party; (3) is lawfully disclosed to the receiving party from a source other than the disclosing party, provided that such source is not bound by any fiduciary, contractual or legal duties of confidentiality; and (4) is lawfully and independently developed by the receiving party, which can be established by written evidence.

e. In order for Seasoft to provide the Services, Customer will provide Seasoft with Customer Information and hereby grants Seasoft, a limited, non-exclusive, royalty-free right and license to have access to and make use of the Customer Information as necessary to provide Services and to improve Seasoft’s products and Services and to generate data on a de-identified, aggregated or otherwise anonymized basis, for research, analytics and benchmarking purposes (“Usage Data”). Seasoft shall retain all right, title and interest in the Usage Data.

f.  Seasoft hereby identifies as Confidential, and Customer expressly acknowledges and agrees that, any ideas, concepts, know-how, methods, models, data, techniques, business rules, skill, knowledge and experience that were or are used, developed or gained by Seasoft or any of its personnel and all components thereof, including without limitation the Seasoft Materials and any websites, systems, reports or tools made available to Customer in connection with the performance of the Services are owned by Seasoft as provided herein and are the Confidential Information of Seasoft.

g. During the Term and for a period of up to ninety (90) days thereafter, Customer may request a return of the Customer Information and Seasoft will provide, at Customer’s cost, copies of the Customer Information in Seasoft’s possession, in a file format to be determined in Seasoft’s reasonable discretion. If Customer does not make such request within such 90-day period Seasoft will have the right to delete all such data.  In addition, and notwithstanding anything to the contrary, upon or on the disclosing party’s request at any time, the receiving party will promptly destroy all notes, memoranda, programs, computer memory media, equipment and all other materials containing the disclosing party’s Confidential Information and will not retain any copies thereof, other than as permitted under this Agreement. The receiving party shall promptly provide the disclosing party with written certification of such destruction of Confidential Information. To the extent that any Confidential Information is retained as permitted hereunder, or to the extent that copies of any Confidential Information are stored in electronic archives or backups made in the ordinary course of business in accordance with applicable legal, disaster recovery and professional requirements, all such Confidential Information shall continue to be governed by the provisions of this Section 6.

h. Limitations. Customer agrees to receive and hold in confidence and not to disclose in any manner to third parties the Services or any other materials delivered to it or information disclosed to it by Seasoft under this Agreement (collectively, “Seasoft Confidential Information”). Customer will use its best efforts to ensure that no improper or unauthorized use is made of such Services or Seasoft Confidential Information or information relating to the Services. Customer may only use the Services and Seasoft Materials in its own business and pursuant to the terms of the Agreement and related Order Forms and shall ensure that its Authorized Users comply with the terms herein. Customer agrees that it shall not, in whole or in part, at any time during or after the Term: (i) sell, assign, sub-license, lease, rent, timeshare, grant a security interest in, distribute, transfer, communicate or disclose any of the Seasoft Materials to any third party; (ii) modify or attempt to modify any of the Seasoft Materials or decompile, reverse engineer, create or recreate any related source code or any derivative works of the Services or Seasoft Materials; (iii) use any of the Seasoft Materials to provide services to, or to otherwise benefit, any third party, other than the Authorized Users or Directory Users (which may include  Seasoft’s customers); (iv) use any of the Seasoft Materials to create a program having similar features or functions of the Seasoft Materials; (v) remove or modify any copyright or other proprietary notice contained in any of the Seasoft Materials; (vi) use, possess, or transfer any of the Seasoft Materials in and/or to any foreign jurisdiction in violation of any trade laws or regulations; or (vii) allow others to do any of the foregoing. Customer’s access to the Services does not entitle it to any professional services from Seasoft unless expressly mutually agreed to in an Order Form. Customer shall only use the Services in accordance with the instructions or documentation for the Services.  Customer may not use the Services for the benefit of third parties without Seasoft's prior written consent.   Upon Seasoft’s written request to Customer, Customer will certify in writing that Customer is using the Services in compliance with this Agreement and shall provide Seasoft with the relevant information to confirm compliance with the terms of this Agreement.     

7. Communications:

Communications hereunder shall be in writing and shall be addressed to each party at its address set forth on the first page hereof and delivered by one of the following: (a) personally; (b) by certified mail, postage prepaid, return receipt requested; (c) by recognized overnight courier service, charges prepaid; or (d) by email by an authorized representative of either party.

8. Miscellaneous:

The parties are independent contractors. Nothing contained in this Agreement will be construed or implied to create an agency, partnership or joint venture between the parties.  Neither party will have any liability for delay or failure in performance of any term of this Agreement to the extent that such delay or failure is caused by any cause not within such party's direct control, other than financial inability.  This Section 8, as well as the communications, confidentiality, intellectual property and limitation of liability provisions of this Agreement, will survive the termination or expiration of this Agreement. If any provision of this Agreement is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions of this Agreement will remain in full force and effect. Such invalid or unenforceable provision will be automatically revised to be a valid or enforceable provision that comes as close as permitted by law to the parties' original intent.  Customer hereby grants Seasoft the right to use Customer’s name, logo and trademarks in Seasoft’s publicly-displayed customers lists and related marketing collateral, provided that Customer may request that Seasoft remove its name and marks at any time. 

The entire Agreement between the parties with respect to the subject matter hereof is contained in this Agreement and there are no understandings, agreements or representations not specified herein.All headings and captions used herein are for convenience only and are of no meaning in the interpretation or effect of this Agreement. This Agreement shall supersede any previous agreement between Seasoft and Customer including purchase orders, requisitions and receiving reports issued by Customer. This Agreement shall be governed by and interpreted under the laws of the state of New York.  Each party irrevocably agrees that any legal action, suit, or proceeding in any way arising out of or in connection with this Agreement shall be submitted to the exclusive jurisdiction of the state or federal courts of Nassau County, NY. This Agreement may not be transferred or assigned by Customer without prior written consent of Seasoft.

9.  Definitions

Definitions. The following definitions apply to the Agreement:

a.    “Authorized Users” means the personnel, authorized representatives  for whom Customer has authorized to use the Services provided that such Authorized User is legally bound to comply with the terms and conditions of the Agreement.

b.      “Customer Information” means data of or concerning Customer, its Authorized Users, Directory Users, consumers, customers or clients, and/or its parent, subsidiaries, affiliates and agents provided by Customer to Seasoft in connection with the Services. Customer Information includes all information entered into the Services by Authorized Users.

c.      “Directory Users” means the user names that are entered or downloaded into the Services by Customer, that are being managed within the Services.  For the purposes of licensing, use of the Services is limited to the managing the number of Directory Users specified in an Order Form. 

d.      “Fees” mean the fees all in U.S. dollars agreed to be paid by Customer as set forth in the applicable Order Form.

e.      “Intellectual Property Rights” means, without limitation, any and all patents, patent applications, trademarks, registrations for trademarks, applications for registration of trademarks, trade secrets, copyrights, registrations for copyrights, applications for registration of copyrights, and all other similar items of intellectual property, whether registered or unregistered, any and all applications thereto, including any common law or other rights created by use thereof, all proceeds thereof (such as by the way of example any licenses, royalties and proceeds of current infringements), and the right to sue for past, present and future infringements.

f.       “Order Form” means an order form incorporated under, and governed by, this Agreement, pursuant to which Customer orders Services. “Order Forms” shall also include any purchase page on the Seasoft website where Customer selects Services for purchase.

g.      Seasoft Materials” mean all software, technology, source code, hardware, servers, materials, tools, templates, know-how, methods, processes, forms, reports, data and information (other than Customer Information) and any and all components and materials related to such items whether or not created, assembled, organized or produced by Seasoft and modification and enhancements to any such items whether or not created by Seasoft.

h.      “Services” means Seasoft’s Tello platform services as may be further described in an Order Form.