THIS END USER LICENSE AGREEMENT (“AGREEMENT”) IS BETWEEN SEAGULL SCIENTIFIC, INC. OR THE APPLICABLE SEAGULL SCIENTIFIC, INC. SUBSIDIARY (“SEAGULL SCIENTIFIC” OR “WE”, “US” OR “OUR”) AND THE CUSTOMER (INDIVIDUAL OR ENTITY) THAT HAS DOWNLOADED OR OTHERWISE PROCURED THE LICENSED SOFTWARE (AS DEFINED BELOW) FOR USE AS AN END USER (“YOU”). BY CHECKING THE ACCEPTANCE BOX OR INSTALLING OR USING ALL OR ANY PORTION OF THE SOFTWARE, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AS PUBLISHED ON SEAGULL SCIENTIFIC’S WEBSITE AT WWW.SEAGULLSCIENTIFIC.COM (AS MAY BE RELOCATED BY SEAGULL SCIENTIFIC FROM TIME TO TIME). SEAGULL SCIENTIFIC RESERVES THE RIGHT, AT ANY TIME AND FROM TIME TO TIME, TO UPDATE, REVISE, SUPPLEMENT, AND OTHERWISE MODIFY THIS AGREEMENT AND TO IMPOSE NEW OR ADDITIONAL RULES, POLICIES, TERMS, OR CONDITIONS ON YOUR USE OF THE SOFTWARE. SUCH UPDATES, REVISIONS, SUPPLEMENTS, MODIFICATIONS, AND ADDITIONAL RULES, POLICIES, TERMS, AND CONDITIONS (COLLECTIVELY REFERRED TO IN THIS AGREEMENT AS "ADDITIONAL TERMS") WILL BE EFFECTIVE IMMEDIATELY AND INCORPORATED INTO THIS AGREEMENT. YOUR CONTINUED USE OF THE LICENSED SOFTWARE FOLLOWING THE ADDITIONAL TERMS WILL BE DEEMED TO CONSTITUTE YOUR ACCEPTANCE OF ANY AND ALL SUCH ADDITIONAL TERMS. ALL ADDITIONAL TERMS ARE HEREBY INCORPORATED INTO THIS AGREEMENT BY THIS REFERENCE. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, DO NOT INSTALL THE SOFTWARE. IF YOU WISH TO USE THE SOFTWARE AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND THE ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT AND AUTHORITY TO DO SO.
Affiliate: means any entity that directly or indirectly controls, is controlled by, or is under common control with you. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of your voting interests.
Authorized Partner: means an authorized Seagull Scientific reseller, partner or OEM.
Contractor: means those independent third parties who perform services related to this Agreement for you, but solely to the extent they are acting on your behalf.
Documentation: means any supporting product help and technical specifications documentation provided by Seagull Scientific with the Software to you. Documentation does not include white papers, community forums, training videos, tutorials, Knowledge Base articles or other similar resources which may be made available for your convenience.
License Certificate: means the document from Seagull Scientific that includes your Product Key Code that you receive after your order is fulfilled. Each License Certificate you receive shall be deemed a part of this Agreement.
License Term: means the Software Product license term specified on the applicable License Certificate from Seagull Scientific or by an Authorized Partner. The License Term may be a fixed term, a perpetual term or a limited term for certain editions.
Personal Data: Personal data is any information that relates to an identified or identifiable living individual or recognized legal entity. Different pieces of information, which collected together can lead to the identification of a particular person or entity, also constitute personal data.
Printed Item(s): Each discrete printed item is counted as one (1) printed item. For example, if content is merged into a template to generate one or more pages where each page contains multiple labels, each label on each page is counted as one (1) printed item. Similarly, if content is merged into a template to generate one or more pages of a PDF file, such as receipts, tags, invoices or packing slips, each discrete item on each individual page is counted as one (1) printed item.
Product Key Code: means the valid license key(s), license code, uniquely identifiable user registration or Software activation code (“PKC”) provided to you at the time of purchase.
Software: means the proprietary Seagull Scientific software provided in connection with this Agreement in either Source Code or machine code form (or as otherwise specified in any related License Certificate), as more fully described in the Documentation. “Software Product” shall also include any Support and Maintenance Services releases and updates provided to you under this Agreement.
Source Code means any collection of code, with or without comments, written using a human-readable programming language, usually as plain text. The source code of a program is specially designed to facilitate the work of computer programmers, who specify the actions to be performed by a computer mostly by writing source code. The source code is often transformed by an assembler or compiler into binary machine code that can be executed by the computer. The machine code might then be stored for execution at a later time. Alternatively, source code may be interpreted and thus immediately executed.
Unless otherwise noted, the Software, Support and Maintenance Service, and Documentation are referred to collectively herein as “Software Product(s)”. All undefined names of Software Products have the meanings given to them in the Documentation.
User Content: means any data, email address, file attachments, text, images, reports, personal information, or other content that is uploaded or submitted to the online Portal by you and is processed by Seagull Scientific on your behalf.
2. Seagull Scientific Software Products.
2.1 Seagull Scientific Software Activation. In order to use the Software Product under this Agreement, you must activate your copy of the Software Product with the PKC provided to you at the time of purchase and/or submit a uniquely identifiable user registration when prompted, in accordance with the scope of use and other terms specified for each type of Software, the Documentation, and as set forth in this Section 2 of this Agreement. Except as set forth herein, any terms which apply to a Software Product also apply to any updates and upgrades to that Software Product.
2.2 Account and Product Registration. You must register for an account with us and register your product(s) under that account, in order to place orders or access or receive Software and/or Support. Your registration information must be accurate, current, and complete. You must keep your registration current so that we may send notices about your Software Product, our Maintenance and Support Agreement, service releases, statements, and other information to you by email or through your account, and you agree to accept such notices.
2.3 Usage Metrics. Your license to Seagull Scientific’s Software Product will be subject to and restricted by usage metrics such as the number of printers used, or number of items printed within a specific time period. Seagull Scientific Software will only license such use as expressed in Usage Metrics determined by the type of license you have either purchased or, in the case of an Evaluation Edition, for which you have been granted a license by Seagull Scientific or an Authorized Partner.
2.5 Seagull Scientific may access or disclose information about you or your use of BarTender Software: (a) when it is required by law (such as when Seagull Scientific receives a valid subpoena or search warrant); (b) to respond to your requests for customer service support; or (c) when Seagull Scientific, in its discretion, thinks it is necessary to protect Seagull Scientific’s rights, property, or personal safety, or that of Seagull Scientific’s users, or the public.
2.6 Seagull Scientific License Types and Specific Restrictions
2.6.1 Perpetual License. Software Product that may be licensed to you for as long as you comply with the terms of this Agreement, as it may be modified from time to time. The following Software Products are available on a perpetual license: Ultralite; Starter; Professional; Automation; and, Enterprise.
2.6.2 Subscription License. Software Product that allows you to use the Software Product for a specified license term provided you comply with the terms of this Agreement, as it may be modified from time to time. The following Software Products are available on a subscription license: Professional; Automation; and, Enterprise.
2.6.3. Evaluation License. Software Product that allows you to use the Software Product for a pre-determined and/or time-limited term provided you comply with the terms of this Agreement, as it may be modified from time to time. Evaluation licenses may be granted for the following Software Products: Free Edition, Trial, NFR.
2.6.4 Printer-Based License. When your license is based on the maximum number of printers used in each 7-Day Period. Usage of a printer is counted as that printer is used by BarTender Software directly, or when such usage is by automated usage by any of the companion applications or the software development kit (“SDK”) Seagull Scientific provides. A usage shall mean use to print a template from a BarTender Software Document (BTW file) directly to that printer, or to create a PDF or similar type of data stream that is subsequently sent to print at that printer. While the BarTender Licensing Service attempts to monitor the printer count and license compliance, it is your responsibility to ensure that you are licensed for the actual number of printers being used. The total number of printers licensed to use your Software Product must not, in a 7-Day Period, exceed the number of licenses purchased on the applicable License Certificate(s) or received by you from Seagull Scientific, including to the extent applicable, across all production and non-production environments.
2.6.5 Printed Item-Based License. When BarTender Software is used to generate electronic documents such as PDF files, licensing is based on the number of items printed per week, per licensed printer that is established for your edition. You can find the number of Printed Items established for your edition here, in our BarTender features comparison table. While the BarTender Licensing Service attempts to monitor license compliance of the number of items printed per week per licensed printer, it is your responsibility to ensure that you print no more than the number established for your edition per week per licensed printer. The total number of Printed Items printed in a week must not, in a 7-Day Period, exceed the number established for your edition per week per licensed printer, including to the extent applicable, across all production and non-production environments.
2.6.6 Printed Label-Based License. When your license is based on the number of printed labels in a specified timeframe, your license restrictions are identified in the Documentation and/or on the applicable License Certificate associated with your license. While the BarTender Licensing Service attempts to monitor the volume of printed labels in a specific timeframe, it is your responsibility to accurately count the number of labels printed, including to the extent applicable, across all production and non-production environments, in accordance with the terms of the applicable License Certificate(s) and appropriately pay Seagull Scientific for the correct label volume.
2.6.7 Relationship of Various Licenses to an Enterprise Edition License. Your ability to configure a redundant BarTender Licensing Service is restricted to the Enterprise Edition. The only supported way you may configure a redundant BarTender License is by using the redundancy features built into the Enterprise Edition. Any other method of cloning, copying or duplicating an installed instance of the BarTender Licensing Service, whether on a physical computer or virtual server, in a manner that allows it to support a duplicate of a PKC already in use by another instance of the BarTender Licensing Service is prohibited. A redundant BarTender Licensing Service may be operational only when the primary site is nonoperational. Except for system maintenance and updating of databases, the redundant Software Product installation(s) shall remain dormant while the primary site (or any other redundant site) is operational.
2.6.8 The Free Edition cannot be used in combination with keystroke emulation for any reason and specifically for the purpose of entering data to print.
2.6.9 Trial license. You may install and use the Trial license solely for the purpose of evaluating the Software Product to determine whether to purchase the Software Product. You may not use the Trial license for any other purposes, including but not limited to competitive analysis, commercial, professional, or for-profit purposes. You may only use the Trial license for thirty (30) days from the date you activate and/or register via the PKC or otherwise, unless otherwise specified by Seagull Scientific in the License Certificate or extended in a separate writing from Seagull Scientific (“Evaluation Period”). Unless you pay the applicable license fee for the Software Product (following which Seagull Scientific will remove the Evaluation Period time limitation from your PKC), the Trial license will become inoperable at the end of the Evaluation Period.
2.6.10 Not For Resale (“NFR”) license. The aforementioned prohibition against competitive analysis in Section 2.6.9 applies, as well, to the Software Product provided with an NFR license. You may use an NFR license to print labels for commercial or for-profit purposes. Your NFR license to use the Software Product allows your use only during the License Term Seagull Scientific designates at the time you receive the NFR license. Seagull Scientific may terminate the NFR license to use the Software Product at any time and for any reason in Seagull Scientific’s sole discretion. Software Product may become inoperable upon termination. Notwithstanding any other provision of this Agreement, the Software Product is licensed to be “AS IS”, i.e. without warranty of any kind, express or implied. THIS AGREEMENT, AND THE TERMS AND CONDITIONS HEREIN, SHALL GOVERN THE NFR LICENSE TO USE THE SOFTWARE PRODUCT.
3.1 Grant of License. Subject to all of the terms and conditions of this Agreement, and except as set forth in Section 6 (Term and Termination), during the applicable License Term, Seagull Scientific grants you a limited, non-transferable, non-sublicensable, non-exclusive license to use the Software Product for which you have been issued a PKC by Seagull Scientific or an Authorized Partner, but only in accordance with: (a) the Documentation; (b) the restrictions in Section 2 (Seagull Scientific Software Products), Section 2.6 (Seagull Scientific License Types and Specific Restrictions) and any restrictions on the applicable License Certificate; and (c) the number of printers and/or permitted number of labels (as applicable), on the platforms and configurations or any other restrictions mutually agreed upon by you and an Authorized Partner. You may use the Software Product to produce labels, barcodes, RFID tags, ID cards or otherwise directly mark parts for your own business use, or extend labeling to third parties with whom you do business as a “Marketing Service Provider”, “Service Bureau” or other entity with a similar business model. You may allow your Contractors and Affiliates to use the Software Product in accordance with this Agreement, provided you shall remain liable for all acts and omissions of your Affiliates and Contractors as if their acts or omissions were your own. You assume full responsibility for the selection of the Software Product to achieve your intended results, and for the installation, use, and results obtained from the Software Product.
3.2 Restrictions on Use of Software. Unless otherwise specifically provided in your License Certificate, Seagull Scientific does not grant you permission to modify any Software whether in the form of source code or machine code of the Software provided by Seagull Scientific to you under any circumstances. To be clear, as a condition of your license, you shall not (and shall not allow any third party to): (a) decompile, disassemble, or otherwise reverse engineer the Software or attempt to reconstruct or discover any source code, algorithms, file formats or programming interfaces of the Software by any means whatsoever (except and only to the extent that applicable law prohibits or restricts reverse engineering restrictions, or as permitted by an applicable Open Source Software license); (b) distribute, sell, sublicense, rent, lease or use the Software for time sharing, hosting, or other use of the Software as a service or like purposes unless Seagull Scientific provides its prior written consent; (c) remove any product identification, proprietary, copyright trademark, service mark, or other notices contained in the Software; (d) modify any part of the Software, or to create a derivative work of any part of the Software, or incorporate the Software into or with other software; (e) publicly disseminate performance information or analysis (including, without limitation, benchmarks) from any source relating to the Software; (f) utilize any equipment, device, software, or other means designed to circumvent or remove any form of Product Key, PKC or copy protection used by Seagull Scientific in connection with the Software, or use the Software together with any authorization code, PKC, serial number, or other copy protection device not supplied by Seagull Scientific or through an Authorized Partner; (g) use the Software to develop a product which is competitive with any Seagull Scientific product offerings; (h) use unauthorized PKCs or keycode(s) or distribute or publish keycode(s) except as may be expressly permitted by Seagull Scientific in writing; (i) as applicable to Printer-Based licenses, enable access to the Software for a greater number of printers than the sum quantity of licenses purchased on the applicable License Certificate(s); (j) as applicable to Printer-Based licenses, reassign license rights between printers so frequently as to enable a single license to be shared between multiple printers; or (k) use the Software to develop a product that converts any BTW file format to an alternative printing file format used by any general-purpose printing, data analysis or printing product that is not the property of Seagull Scientific.
3.3 Back-Up / Archival Copies. You are entitled to make copies of the Software for back-up or archival purposes. These back-up and/or archival copies are for internal use by you or your company only. You are prohibited from publicly distributing and/or mirroring the Software Product on the internet without our explicit permission.
3.4 Third-Party Code. The Software Product may contain or be provided with components which are licensed from third parties (“Third Party Code”), including components subject to the terms and conditions of “open source” software licenses (“Open Source Software”). Third-party software may be identified in the Documentation, and is listed here on our website: Third Party Components. To the extent required by the license that accompanies the third-party software, the terms of such license will apply in lieu of the terms of this Agreement with respect to such software, including, without limitation, any provisions governing access to source code, modification or reverse engineering.
3.5 Homogeneity of License Application. Regardless of Delivery method, this Agreement applies in its entirely to the whole or to individual separated fragments of the delivered Software.
3.5.1. Electronic Delivery. All Software and Documentation shall, by default, be delivered by electronic means. Software shall be deemed delivered when it is made available for you to download (“Delivery”).
3.5.2. Physical Media Delivery. Upon your written request and for a fee, you may receive the Software and Documentation on physical media. Software shall be deemed delivered as of the date it is shipped (“Delivery”).
4. Ownership. Notwithstanding anything to the contrary contained herein, except for the limited license rights expressly provided herein, Seagull Scientific and its licensors have and will retain all rights, title and interest (including, without limitation, all intellectual property rights) in and to the Software Product, Source Code, Machine Code, and all copies, modifications and derivative works thereof (including any changes which incorporate any of your ideas, feedback or suggestions). You acknowledge that you are obtaining only a limited license right to the Software Product, Source Code, Third Party Code and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Agreement or otherwise. All other trademarks are the property of their respective owners.
5. Payment. Whether you purchased a license to use the Software Product from a Seagull Scientific Authorized Partner or from Seagull Scientific directly, you shall pay all fees associated with the Software Product license and any services purchased hereunder as set forth in the applicable License Certificate. Except as expressly set forth herein, all fees are non-refundable once paid. In the event you do object to any modification of the EULA as expressed above, to terminate use, you must promptly notify Seagull Scientific of your termination in writing and express the nature of the objection to the modified EULA. Failure to notify Seagull Scientific shall be deemed continued use and acceptance of the modified EULA for which fees will continue to accrue in accord with the relevant license. 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.
6. Term and Termination.
6.1 Term of Perpetual Licenses. If you purchased a Perpetual License, unless sooner terminated as provided herein, you are granted the right to use your perpetual license in perpetuity. Maintenance and Support of your perpetual license is governed by Seagull Scientific’s Maintenance and Support Agreement on our website, as expressed at the time of such maintenance or support.
6.2 Term of Subscription Licenses. If you purchased a Subscription License, unless sooner terminated as provided herein, your subscription license to the Software Product expires at the end of the applicable License Term. License Terms may be renewed in a License Certificate or as otherwise mutually agreed by the parties.
6.3 Term of Evaluation Licenses. Terms vary by edition and are described above in sections 2.6.3, 2.6.8, 2.6.9 and 2.6.10.
6.4 Term of Agreement. This Agreement commences on the date of your first License Certificate or the activation date of the Software Product (whichever is earlier) and expires at such time as all License Terms and service subscriptions hereunder have expired in accordance with their own terms (the “Term”). Seagull Scientific may terminate this Agreement (including all related License Certificates) : (a) if you fail to cure any material breach of this Agreement within thirty (30) days after written notice of such breach including without limitation your failure to pay, expiration of the term, and termination shall occur immediately upon Seagull Scientific becoming aware that you have committed any breach of Section 2.6 (Seagull Scientific License Types and Specific Restrictions); (b) if you fail to comply with applicable laws, regulations, or in response to U.S. economic sanctions laws, regulations, and requirements, and applicable foreign import and export controls; or (c) if you seek protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against you (and not dismissed within sixty (60) days). Unless otherwise specified herein, termination is not an exclusive remedy and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise.
6.5 Termination. Upon any expiration or termination of this Agreement, you shall cease any and all use of any Software Product and immediately pay any outstanding fees due hereunder.
6.6 Survival. Sections 2.6 (Seagull Scientific License Types and Specific Restrictions), 4 (Ownership), 5 (Payment), 6 (Term and Termination), 7.4 (Disclaimer of Warranties), 9.1, 9.2, 9.3 and 9.5 (Limitation of Remedies; Indemnification and Damages), 11 (Export Compliance) and 12 (General) shall survive any termination or expiration of this Agreement.
7. Limited Warranties and Disclaimer.
7.1 Limited Warranty. Seagull Scientific warrants to you that for a period of thirty (30) days from Delivery (the “Warranty Period”) the Software Product shall operate in substantial conformity with the Documentation. If during the Warranty Period the Software Product does not operate in substantial conformity with the Documentation, you may elect to return the Software Product in accordance with Seagull Scientific’s current BarTender Returns Policy as expressed on our website. After the Warranty Period, Seagull Scientific does not warrant that your use of the Software Product will be uninterrupted or error-free or that any security mechanisms implemented by the Software Product will not have inherent limitations. After the Warranty Period, Seagull Scientific will use its best efforts to resolve the reported nonconformity of the Software Product. Such efforts, in Seagull Scientific’s sole discretion, may include an error-correction or work-around which corrects the reported nonconformity or if Seagull Scientific determines such remedies to be impracticable within a reasonable period of time, to refund the license fee paid for the applicable Software Product. SEAGULL SCIENTIFIC SHALL HAVE NO OBLIGATION WITH RESPECT TO A WARRANTY CLAIM UNLESS NOTIFIED OF SUCH CLAIM WITHIN THE WARRANTY PERIOD. The Warranty Period applies only to the initial Delivery of Software Product under a License Certificate and does not renew or reset, for example, with renewal License Terms or the delivery of Software Product updates or maintenance releases or PKCs. For additional information, reference Seagull Scientific’s Software Maintenance Agreement on our website.
7.2 Exclusions. The above warranty shall not apply: (a) if the Software Product is used with hardware or software not authorized in the Documentation; (b) if any modifications are made to the Software Product by you or any third party; (c) to defects in the Software Product due to accident, abuse or improper use by you; (d) to any Trial license, NFR license or other Software Product provided as a beta, preview or an evaluation basis.
7.3 Mutual Warranties. Both parties each hereby warrant to the other that: (a) it has the authority to enter into the Agreement, to grant the rights granted by it under the Agreement, and to perform its obligations under the Agreement; and (b) it will comply with all applicable laws and regulations in effect during the term of the Agreement as they apply to such party’s rights and obligations under the Agreement.
7.4 Disclaimer of Warranties. THIS SECTION 7.4 IS A LIMITED WARRANTY AND, EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 7, THE SOFTWARE, INCLUDING WITHOUT LIMITATION THE THIRD-PARTY CODE, AND ALL SERVICES ARE PROVIDED “AS IS”. NEITHER SEAGULL SCIENTIFIC NOR ITS LICENSORS MAKES ANY OTHER WARRANTIES, CONDITIONS OR UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW, THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, SHALL BE LIMITED TO THE WARRANTY PERIOD. THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE SOFTWARE REMAINS WITH YOU.
8. Support and Maintenance. Subject to the terms and conditions of this Agreement, including payment of any applicable fees, Seagull Scientific shall provide support and maintenance services for the Software Product for the period set forth in the License Certificate, pursuant to Seagull Scientific’s then-current Support and Maintenance policies (“Support and Maintenance Services”). All Support and Maintenance Services renewals will be subject to the terms and conditions of this Agreement including Seagull Scientific’s then-current Support and Maintenance policies. You may review Seagull Scientific’s Maintenance Agreement on our website.
9. Limitation of Remedies; Indemnification and Damages.
9.1 SEAGULL SCIENTIFIC SHALL NOT BE LIABLE FOR ANY LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, LOST PROFITS, COSTS OF COVER, OR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
9.2 EXCEPT FOR: YOUR BREACH OF SECTION 2.6 (SEAGULL SCIENTIFIC LICENSE TYPES AND SPECIFIC RESTRICTIONS), OR SECTION 11 (EXPORT COMPLIANCE), EACH PARTY’S ENTIRE LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED FEES PAID OR OWED BY YOU UNDER THIS AGREEMENT DURING THE TWELVE MONTHS 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 USD$5.00; PROVIDED, HOWEVER, IF YOU HAVE ENTERED INTO A SEAGULL SCIENTIFIC MAINTENANCE AGREEMENT, SEAGULL SCIENTIFIC’S ENTIRE LIABILITY REGARDING SUPPORT SERVICES SHALL BE GOVERNED BY THE TERMS OF THAT AGREEMENT. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
9.3 The parties agree that the limitations specified in this Section 9 will survive and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
9.4 Seagull Scientific Indemnification: Seagull Scientific shall defend you from and against any claim by a third party alleging that the Software Product when used as authorized under this Agreement infringes a U.S. patent, U.S. copyright, or U.S. trademark and shall indemnify and hold you harmless from and against any damages and costs awarded against you or agreed in settlement by Seagull Scientific (including reasonable attorneys’ fees) resulting from such claim, provided that you tender to Seagull Scientific: (a) prompt written notice of such claim (but in any event notice in sufficient time for Seagull Scientific to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (c) all reasonably necessary cooperation from you. If your use of the Software Product is (or in Seagull Scientific’s opinion is likely to be) enjoined, if required by settlement or if Seagull Scientific determines such actions are reasonably necessary to avoid material liability, Seagull Scientific may, in its sole discretion: (i) substitute for the Software Product substantially functionally similar programs and documentation; (ii) procure for you the right to continue using the Software Product; or if (i) and (ii) are not commercially reasonable, (iii) terminate this Agreement and refund to you any prepaid, unused license fees for the duration of the then-current License Term (or, if your License Term is perpetual, your refund will equal the license fee paid by you as reduced to reflect a five year straight-line depreciation from the applicable license purchase date). The foregoing obligations of Seagull Scientific shall not apply: (1) if the Software Product is modified by you or any party other than Seagull Scientific, but solely to the extent the alleged infringement is caused by such modification; (2) if the Software Product is combined with products or processes not provided or authorized by Seagull Scientific, but solely to the extent the alleged infringement is caused by such combination; (3) to any unauthorized use of the Software Product; (4) to any unsupported release of the Software Product; (5) to any Third-Party Code contained within the Software Product; or (6) if you settle or make any admissions with respect to a claim without Seagull Scientific’s prior written consent. THIS SECTION 9 SETS FORTH SEAGULL SCIENTIFIC’S AND ITS LICENSORS’ SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.5 Indemnification by You. Subject to this Section 9, you shall defend Seagull Scientific from and against all claims by third parties resulting from or relating to: (a) any breach by you of this Agreement, your unauthorized use of the Software Product, or your noncompliance with the licensing restrictions contained herein, and, further, you shall indemnify and hold Seagull Scientific harmless from and against any damages and costs awarded against Seagull Scientific or agreed in settlement by you (including reasonable attorney’s fees) resulting from such claims, provided that you shall have received from Seagull Scientific: (i) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of such claim; and (iii) all reasonably necessary cooperation from Seagull Scientific. You may not settle any such claim relating to the Software Product without Seagull Scientific’s prior written consent, which shall not be unreasonably withheld, conditioned, or delayed.
10. Security and Processing.
10.2 You represent and warrant that you have all rights, permissions, and consents necessary to: (a) submit your applicable User Content for use of the Software Product; and (b) grant Seagull Scientific the limited rights to process your User Content for the provision of the Software Product described herein. You hereby grant Seagull Scientific a worldwide, non-exclusive, non-transferable, right to use and otherwise process your User Content under this Agreement only: (i) as required by applicable law; or (ii) as necessary to provide the Software Product, prevent or address technical problems with the Software Product, notify you of Software Product updates, upgrades and Software Product license and/or support and maintenance renewals, as applicable, or violations of this Agreement.
11. Export Compliance. You acknowledge that the Software Product is subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your download of, access to, and use of the Software Product. You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Software Product or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that you are not located in, under the control of, or a national or resident of any such prohibited country. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Software Product for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
12.1 Non-assignment. You may not assign any of your rights or obligations hereunder, whether by operation of law or otherwise, without Seagull Scientific’s prior written consent (not to be unreasonably withheld). This Agreement will bind and inure to the benefit of the parties and your respective successor(s) and permitted assign(s).
12.2 Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
12.3 Governing Law; Jurisdiction and Venue. Excluding conflict of laws rules, this Agreement shall be governed by and construed under the laws of the State of Washington, USA. Should any legal action be necessary between the parties such legal action shall be filed in Bellevue, Washington, USA. The prevailing party in any litigation arising out of this Agreement shall be entitled to be reimbursed for all attorney's fees, expense, and associated costs. If any provision of the Agreement shall be held to be invalid, illegal, or unenforceable, the remaining provisions shall nevertheless be given full force and effect. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act, as currently enacted by any jurisdiction or as may be codified or amended from time to time by any jurisdiction, do not apply to this Agreement.
12.4 Attorneys’ Fees and Costs. The prevailing party in any action to enforce this Agreement will be entitled to recover its attorneys’ fees and costs in connection with such action.
12.5 Notices and Reports. Any notice or report hereunder shall be in writing or in electronic format. If to Seagull Scientific by mail, such notice or report shall be sent to Seagull Scientific at 15325 SE 30th Place, Suite 100, Bellevue, WA 98007-6597 to the attention of “Legal Department”. If to Seagull Scientific by email, such notice or report shall be sent to: legal@SeagullScientific.com. If to you, such notice or report shall be sent to the mailing or email address you provided upon placing your order. Notices and reports sent by mail shall be deemed given: (a) upon receipt if by personal delivery; (b) upon receipt if sent by certified or registered mail (return receipt requested); or (c) one day after it is sent if by next day delivery by a major commercial delivery service. Any notices and reports sent by email shall be effective upon receipt of the same.
12.6 Amendments; Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in a writing signed by a duly authorized representative on behalf of the party claimed to have waived. All conflicting terms in any purchase order or other business form employed by you, including any electronic invoicing portals, vendor registration processes, or forms related to individuals being on your premises for Professional Services, are void, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
12.7 Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement.
12.8 Independent Contractors. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
12.9 Audit Rights. If Seagull Scientific reasonably suspects non-compliance related to your use of the Software Product and/or with the terms of this Agreement, software monitoring systems and records, we may notify you of our perceived need to verify that your installation and use of the software is compliant.
In many instances, Seagull Scientific may elect to resolve the question of whether use is compliant. In such instances, Seagull Scientific may, at its reasonable discretion, request a user-initiated audit. Within ten (10) business days of the date of our request, you shall certify in writing to Seagull Scientific that (a) you are and have continuously been in full compliance with the terms and conditions of this Agreement, software monitoring systems and records and shall provide such supporting evidence as may reasonably satisfy Seagull Scientific or such further evidence as we may reasonably request; or, (b) to the extent to which you are not, or were not, in full compliance regarding use of the Software Product and/or with the terms of this Agreement, software monitoring systems and records, a certification that you have remedied the matter(s) and shall provide such supporting evidence as may reasonably satisfy Seagull Scientific or as we may reasonably request. Where necessary to achieve compliance, you shall promptly (a) obtain the applicable license(s) from Seagull, or from an Authorized Partner, required to bring you into compliance; and, (b) pay the applicable fees in respect of such license(s).
In instances where Seagull Scientific does not elect to offer the opportunity for user-initiated audit or where the user-initiated audit does not result in a certification that Seagull Scientific does find to reasonably resolve the question of whether use is compliant, then, pursuant to this provision, Seagull Scientific reserves the right to request an audit of your use of the Software Product and your compliance with this Agreement, including inspection of software monitoring system and records. The request, if any, will be made with reasonable prior notice and the audit will be conducted on your premises on a mutually acceptable date and during your regular business hours. Such an audit will be conducted at Seagull Scientific’s expense and by an independent, mutually acceptable third-party auditor who is bound to confidentiality.
In the event that you have installed, accessed or permitted access to or use of the Software Product in a manner that is not permitted under this Agreement or been out-of-compliance with the terms of this Agreement, then you will, within thirty (30) days of notification by us, remedy the matter(s) or otherwise respond to Seagull Scientific in writing specifying the audit results that you dispute. If accommodation isn’t reached Seagull Scientific may terminate this Agreement pursuant to Section 6 (Term and Termination) and you will be liable for the reasonable costs of the audit in addition to any other fees, damages and penalties Seagull Scientific may be entitled to under this Agreement and applicable law. Further, Seagull Scientific may terminate this Agreement pursuant to Section 6 (Term and Termination) if you do not work cooperatively with the auditor.
12.10 Government End-Users. The Software Product is commercial computer software. If the user or licensee of the Software Product is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software Product, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software Product was developed fully at private expense. All other use is prohibited.
12.11 Third-Party Beneficiary. There are no third-party beneficiaries under this Agreement.
12.12 Seagull Scientific’s Customer List. From time to time, the efficacy of the Seagull Scientific Software Product might be shown by the experience of others using the same Seagull Scientific Software 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 Software Product. We will simply acknowledge that you are a user. 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/.
12.13 Language. Regardless of any language into which this Agreement may be translated, the official, controlling and governing version of this Agreement shall be exclusively the English language version.
12.14 Modifications to this Agreement. Seagull Scientific may modify this Agreement from time to time by giving notice to you by email, through our website, through the Software Product or through Seagull Scientific’s online user interfaces as expressed above. At Seagull Scientific’s discretion, you may be required to click to accept or otherwise agree to a modified Agreement in order to continue using the Software Product, and, in any event, continued use of the Software Product after the modified version of this Agreement becomes effective will constitute your acceptance of such modified version as expressed above. Seagull Scientific shall ensure that any modifications under this Section 12.14 will not have a material negative effect on your rights under this Agreement. If you have purchased a subscription license, any modification will only come into effect at the end of the subscription period current at the time of giving of the notice of modification, unless you expressly agree otherwise.
This agreement supersedes all previous agreements.