Terms & Conditions
1. TERMS AND CONDITIONS
1.1 Purpose. This Agreement sets forth the terms and conditions under which Ship Angel agrees to provide (i) certain hosted “software as a service” (“Subscription Services”) for certain software applications (each such application together with any applicable documentation thereto, and programming and user interfaces therefor, a “Platform”) to Authorized Users, as further set forth on each order form (“Order Form”) and (ii) if applicable, all other implementation services, customization, integration, data import and export, monitoring, technical support, maintenance, training, backup and recovery, and change management (“Support Services” together with Subscription Services, the “Services”) related to the Customer’s access to, and use of, such Subscription Services and each Platform.
1.2 The Services; Access and Use License. Subject to the terms and conditions of this Agreement, during the Term, Ship Angel shall use commercially reasonable efforts to provide the Customer the Services. Subject to the terms and conditions of this Agreement, during the Term, Ship Angel hereby grants the Customer and Authorized Users a non-exclusive, non-sublicensable, nontransferable, worldwide license to access and use each Platform, solely for internal business purposes as set forth herein.
1.3 Subscription Services. Each applicable Order Form shall specify and further describe the Services to be provided in accordance with the representations and warranties set forth herein, and shall identify, each applicable Platform, user limitations, fees, subscription term and other applicable terms and conditions.
1.4 Changes to Platform. Ship Angel may, in its sole discretion, make any changes to any Platform that it deems necessary or useful to (i) maintain or enhance (a) the quality or delivery of Ship Angel’s products or services to its customers, (b) the competitive strength of, or market for, Ship Angel’s products or services, (c) such Platform’s cost efficiency or performance, or (ii) to comply with applicable law.
2. PLATFORM ACCESS AND AUTHORIZED USERS
2.1 Administrative Users. During the configuration and set-up process for each Platform, the Customer will identify an administrative user name and password for the Customer’s Ship Angel account. Ship Angel reserves the right to refuse registration of, or cancel user names and passwords it deems inappropriate.
2.2 Authorized Users. The Customer may allow such number of the Customer’s employees and/or independent contractors as is indicated on an Order Form to use the applicable Platform on behalf of the Customer as “Authorized Users.”
2.3 Authorized User Conditions to Use. As a condition to access and use of a Platform, each Authorized User shall agree to abide by the terms of this Agreement, and, in each case, the Customer shall ensure such compliance. The Customer shall immediately notify Ship Angel of any violation of the terms of any of the foregoing by any Authorized User upon becoming aware of such violation, and shall be liable for any breach of the foregoing agreements by any Authorized User.
2.4 Account Responsibility. The Customer will be responsible for (i) all uses of any account that the Customer has access to, whether or not the Customer has authorized the particular use or user, and regardless of the Customer’s knowledge of such use, and (ii) securing its Ship Angel account, passwords (including but not limited to administrative and user passwords) and files. Ship Angel is not responsible for any losses, damages, costs, expenses or claims that result from stolen or lost passwords.
3. ADDITIONAL RESTRICTIONS AND RESPONSIBILITIES
3.1 Software Restrictions. The Customer will not, nor permit or encourage any third party to, directly or indirectly (i) reverse engineer, decompile, disassemble or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to a Platform or any software, documentation or data related to a Platform (“Software”); (ii) modify, translate, or create derivative works based on a Platform or any Software; (iii) use a Platform or any Software for timesharing or service bureau purposes or other computer service to a third party; (iv) modify, remove or obstruct any proprietary notices or labels; or (v) use any Software or a Platform in any manner to assist or take part in the development, marketing or sale of a product potentially competitive with such Software or Platform. For the avoidance of doubt, Software and the Services, including all user-visible aspects of the Services, are the Confidential Information of Ship Angel, and the Customer will comply with Section 4 with respect thereto.
3.3 Cooperation. The Customer shall provide all cooperation and assistance as Ship Angel may reasonably request to enable Ship Angel to exercise its rights and perform its obligations under, and in connection with, this Agreement, including providing Ship Angel with such access to the Customer’s premises and its information technology infrastructure as necessary for Ship Angel to perform the Services in accordance with this Agreement.
3.4 Customer Systems. The Customer shall be responsible for obtaining and maintaining—both the functionality and security of—any equipment and ancillary services needed to connect to, access or otherwise use each Platform, including modems, hardware, servers, software, operating systems, networking, web servers and the like.
3.5 Export Regulations. Export laws and regulations of the United States and any other relevant local export laws and regulations apply to the Subscription Services. The Customer agrees that such export control laws govern its use of the Subscription Services (including technical data) and any services deliverables provided under this Agreement, and the Customer agrees to comply with all such export laws and regulations. The Customer agrees that no data, information, software programs and/or materials resulting from services (or direct product thereof) will be exported, directly or indirectly, in violation of these laws.
3.6 DFARS. Software, each Platform and the Services and any documentation provided by Ship Angel are deemed to be “commercial computer software” and “commercial computer software documentation” pursuant to Defense Federal Acquisition Regulation Supplement, codified under Chapter 2 of Title 48, United States Code of Federal Regulations, Section 227.7202, and Federal Acquisition Regulation, codified in Title 48 of the United States Code of Federal Regulations, Section 12.12. Any use, modification, reproduction, release, performance, display, or disclosure of the Software or documentation by the United States Government is governed solely by this Agreement and is prohibited except to the extent expressly permitted by this Agreement.
4.1 Confidential Information. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has been, and may be, exposed to or acquired business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Confidential Information”). Confidential Information of Ship Angel includes non-public information regarding features, functionality and performance of each Platform and Software. Confidential Information of the Customer includes non-public data provided by the Customer to Ship Angel to enable the provision of access to, and use of, the Services as well as all content, data and information recorded and stored by each Platform for the Customer (“Customer Data”), but explicitly excludes Vendor Information (defined below). The terms and conditions of this Agreement, including all pricing and related metrics, are Ship Angel’s Confidential Information.
4.2 Exceptions. Notwithstanding anything to the contrary contained herein, Confidential Information shall not include any information that the Receiving Party can document (i) is or becomes generally available to the public, (ii) was in its possession or known by it prior to receipt from the Disclosing Party, (iii) was rightfully disclosed to it without restriction by a third party, or (iv) was independently developed without use of any Confidential Information of the Disclosing Party.
4.3 Non-use and Non-disclosure. With respect to Confidential Information of the Disclosing Party, the Receiving Party agrees to: (i) use the same degree of care to protect the confidentiality, and prevent the unauthorized use or disclosure, of such Confidential Information it uses to protect its own proprietary and confidential information of like nature, which shall not be less than a reasonable degree of care, (ii) hold all such Confidential Information in strict confidence and not use, sell, copy, transfer reproduce, or divulge such Confidential Information to any third party, (iii) not use such Confidential Information for any purposes whatsoever other than the performance of, or as otherwise authorized by, this Agreement.
4.4 Compelled Disclosure. Notwithstanding Section 4.3, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent necessary to comply with a court order or applicable law; provided, however that the Receiving Party delivers reasonable advance notice of such disclosure to the Disclosing Party and uses reasonable efforts to secure confidential treatment of such Confidential Information, in whole or in part.
4.5 Remedies for Breach of Obligation of Confidentiality. The Receiving Party acknowledges that breach of its obligation of confidentiality may cause irreparable harm to the Disclosing Party for which the Disclosing Party may not be fully or adequately compensated by recovery of monetary damages. Accordingly, in the event of any violation, or threatened violation, by the Receiving Party of its obligations under this Section, the Disclosing Party shall be entitled to seek injunctive relief from a court of competent jurisdiction in addition to any other remedy that may be available at law or in equity, without the necessity of posting bond or proving actual damages.
5. PROPRIETARY RIGHTS
5.1 Ownership. The Customer shall own all right, title and interest in and to the Customer Data. Ship Angel shall own and retain all right, title and interest in and to (i) each Platform, Software and the Services and all improvements, enhancements or modifications thereto, (ii) any software, applications, inventions or other technology developed in connection with the Services, and (iii) all intellectual property and proprietary rights in and related to any of the foregoing (collectively, “Services IP”). To the extent the Customer acquires any right, title or interest in any Services IP, the Customer hereby assigns all of its right, title and interest in such Services IP to Ship Angel.
5.2 Customer Data. The Customer hereby grants to Ship Angel a non-exclusive, transferable, sublicensable, worldwide and royalty-free license to use and otherwise exploit Customer Data to provide the Services to the Customer hereunder and as necessary or useful to monitor and improve a Platform, Software and the Services, both during and after the Term. For the avoidance of doubt, Ship Angel may use, reproduce and disclose Platform-, Software- and Services-related information, data and material that is anonymized, deidentified, or otherwise rendered not reasonably associated or linked to the Customer or any other identifiable individual person or entity for product improvement and other lawful purposes, all of which information, data and material will be owned by Ship Angel. It is the Customer’s sole responsibility to back-up Customer Data during the Term, and the Customer acknowledges that it will not have access to Customer Data through Ship Angel or any Platform following the expiration or termination of this Agreement.
5.3 No Other Rights. No rights or licenses are granted except as expressly set forth herein.
6. FEES & PAYMENT
6.1 Fees. The Customer will pay Ship Angel the then-applicable fees described in an Order Form in accordance with the terms set forth therein (“Fees”), including, for the avoidance of doubt, any fees incurred through the Customer’s use of a Platform exceeding a services capacity parameter specified on an Order Form.
6.2 Reimbursable Expenses. In addition to the Fees, if applicable, the Customer shall reimburse Ship Angel for reasonable out-of-pocket expenses incurred by Ship Angel in connection with performing the Support Services.
6.3 Payment. Ship Angel may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Ship Angel thirty (30) days after the mailing date of the invoice (unless otherwise specified on the applicable Order Form). Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. In addition to any other remedies available, Ship Angel may suspend Services in the event of payment delinquency.
6.4 Payment Disputes. If the Customer believes that Ship Angel has billed the Customer incorrectly, the Customer must contact Ship Angel no later than thirty (30) days after the closing date on the first billing statement in which the believed error or problem appeared in order to receive an adjustment or credit. Inquiries should be directed to Ship Angel’s Customer support department or the applicable Account Manager.
6.5 Taxes. The Customer shall pay, and shall be liable for, all taxes relating to Ship Angel’s provision of the Services hereunder. Ship Angel shall pay, and shall be liable for, taxes based on its net income or capital.
6.6 No Deductions or Setoffs. All amounts payable to Ship Angel hereunder shall be paid by the Customer to Ship Angel in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason except as may be required by applicable law.
6.7 Subpoena Expenses. If Ship Angel has to provide information in response to a subpoena related to the Customer’s account, then Ship Angel may charge the Customer for Ship Angel’s costs. Such charges may include fees for attorney and employee time spent retrieving records, preparing documents and participating in depositions or other legal process as well as other costs incurred in complying with such legal processes.
7. TERM AND TERMINATION
7.1 Term. This Agreement shall remain in effect until its termination as provided below (the “Term”). Each Order Form shall renew for additional (i) one (1) year periods if the Service Term is equal to or greater than one (1) year, or (ii) periods equal to the Service Term if the Service Term is less than one (1) year (each, a “Renewal Term”), unless written notice of non-renewal is received by the other party at least thirty (30) days, but not less than thirty (30) days, prior to the expiration of the then current term.
7.2 Termination. In addition to any other remedies it may have, either party may also terminate this Agreement upon written notice if the other party fails to pay any amount when due or otherwise materially breaches this Agreement and fails to cure such breach within thirty (30) days or as agreed upon by both parties after receipt of written notice of such breach from the non-breaching party.
7.3 Effect of Termination. Upon termination of the Agreement, the Customer shall immediately cease all use of, and all access to, the Subscription Services and Ship Angel shall immediately cease providing the Support Services.
7.4 Survival. Sections [3.1, 4–6, 7.2, 7.4, and 9–17] shall survive any termination or expiration of this Agreement. All other rights and obligations shall be of no further force or effect.
8. WARRANTY AND DISCLAIMER
8.2 Disclaimer. except as expressly provided herein or in a order form, ship angel does not warrant that access to the platforms, software or services will be uninterrupted or error free, nor does ship angel make any warranty as to the results that may be obtained from use of the services. further, ship angel makes no representations or warranties with respect to services provided by third party technology service providers relating to or supporting a platform, including hosting and maintenance services, and any claim of the customer arising from or relating to such services shall, as between ship angel and such service provider, be solely against such service provider. the platforms, software and services are provided “as is,” and ship angel disclaims all warranties, express or implied, including, but not limited to, implied warranties of non-infringement, merchantability and fitness for a particular purpose, to the maximum extent permitted by applicable law.
9.1 Indemnification by Ship Angel. Ship Angel will defend the Customer against any claim, suit, demand, or action made or brought against the Customer by a third party alleging that the Services, or the Customer’s use or access thereof in accordance with this Agreement, infringes any intellectual property rights of such third party, and will indemnify and hold harmless the Customer from any damages, losses, liabilities, costs and fees (including reasonable attorney’s fees) finally awarded against the Customer in connection with or in settlement of any such claim, suit, demand, or action. The foregoing obligations do not apply with respect to portions or components of any Platform or Service (i) not supplied by Ship Angel, (ii) made in whole or in part in accordance with the Customer specifications, (iii) that are modified after delivery, or granting of access, by Ship Angel, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where the Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where the Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, a Platform is held by a court of competent jurisdiction to be or is believed by Ship Angel to be infringing, Ship Angel may, at its option and expense (a) replace or modify such Platform to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for the Customer a license to continue using such Platform, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and the Customer’s rights hereunder and provide the Customer a refund of any prepaid, unused fees for such Platform. This Section states the Customer’s sole and exclusive remedies for claims of infringement.
10. LIMITATION OF LIABILITY
In no event shall (i) either party’s liability arising out of or related to this agreement, whether in contract, tort or under any other theory of liability exceed in the aggregate the total fees paid or owed by the customer and vendors hereunder during the twelve (12) months immediately preceding the date of the event giving rise to the claim (such amount being intended as a cumulative cap and not per incident), and (ii) either party have any liability to the other for any lost profits or revenues or for any indirect, incidental, consequential, cover, special, exemplary or punitive damages, however caused, whether in contract, tort or under any other theory of liability, and whether or not the party has been advised of the possibility of such damages. the foregoing limitations and disclaimers shall not apply to the extent prohibited by applicable law.
11. GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed in all respects by the laws of the State of [Delaware], without giving effect to its rules relating to conflict of laws. Neither any adoption of the Uniform Computer Information Transactions Act nor the U.N. Convention on the International Sale of Goods applies to this Agreement or to the rights or duties of the parties under this Agreement. Any dispute arising out of or relating to this Agreement, or its subject matter, shall be resolved exclusively by binding arbitration under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”). Either party may send a notice to the other party of its intention to file a case with the AAA under this Section (“Arbitration Notice”). The arbitration will be conducted in New York, New York by a single arbitrator knowledgeable in government contracting matters and the commercial aspects of “software as a service” arrangements and intellectual property. The parties will mutually appoint an arbitrator within thirty (30) days of the Arbitration Notice. If the parties are unable to agree on an arbitrator, then the AAA will appoint an arbitrator who meets the foregoing knowledge requirements. The arbitration hearing will commence within sixty (60) days after the appointment of the arbitrator and the hearing will be completed and an award rendered in writing within sixty (60) days after the commencement of the hearing. Prior to the hearing, each party will have the right to take up to four (4) evidentiary depositions, and exchange two (2) sets of document production requests and two sets, each, of not more than ten (10) interrogatories. The arbitrator will provide detailed written explanations to the parties to support their award and regardless of outcome, each party shall pay its own costs and expenses (including attorneys’ fees) associated with the arbitration proceeding and fifty percent (50%) of the fees of the arbitrator and the AAA. The arbitration award will be final and binding and may be enforced in any court of competent jurisdiction.
The Customer agrees that Ship Angel may identify the Customer as a Customer and use the Customer’s logo and trademark in Ship Angel’s promotional materials. The Customer may request that Ship Angel stop doing so by submitting an email to firstname.lastname@example.org at any time. The Customer acknowledges that it may take Ship Angel up to 30 days to process such request. Notwithstanding anything herein to the contrary, the Customer acknowledges that Ship Angel may disclose the existence and terms and conditions of this Agreement to its advisors, actual and potential sources of financing and to third parties for purposes of due diligence.
All notices, consents, and other communications between the parties under or regarding this Agreement must be in writing (which includes email and facsimile) and be addressed according to information provided on an Order Form. All communications will be deemed to have been received on the date actually received. Either party may change its address for notices by giving written notice of the new address to the other party in accordance with this Section.
14. FORCE MAJEURE
Ship Angel is not responsible nor liable for any delays or failures in performance from any cause beyond its control, including, but not limited to acts of God, pandemics, changes to law or regulations, embargoes, war, terrorist acts, acts or omissions of third party technology providers, riots, fires, earthquakes, floods, power blackouts, strikes, weather conditions or acts of hackers, internet service providers or any other third party or acts or omissions of the Customer or any Authorized User.
Neither party may assign this Agreement to any third party without the prior written consent of the other; provided that no consent is required in connection with an assignment to an affiliate or in connection with any merger, reorganization, consolidation, sale of assets or similar transaction. Ship Angel may sublicense any or all of its obligations hereunder. For the avoidance of doubt, a third party technology provider that provides features or functionality in connection with a Platform shall not be deemed a sublicensee under this Agreement.
16. GENERAL PROVISIONS
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement, together with any Order Form(s) entered into hereunder and all exhibits, annexes and addenda hereto and thereto is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement. All waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has authority of any kind to bind the other party in any respect whatsoever. In the event of a conflict between this Agreement and any Order Form, such Order Form shall prevail unless otherwise expressly indicated in this Agreement or such Order Form. The heading references herein are for convenience purposes only and shall not be deemed to limit or affect any of the provisions hereof. Unless otherwise indicated to the contrary herein by the context or use thereof: (i) the words “hereof,” “hereby,” “herein,” “hereto,” and “hereunder” and words of similar import shall refer to this Agreement as a whole and not to any particular Section or paragraph of this Agreement; (ii) the words “include,” “includes” or “including” are deemed to be followed by the words “without limitation;” (iii) references to a “Section” or “Exhibit” are references to a section of, or exhibit to this Agreement; and (iv) derivative forms of defined terms will have correlative meanings.