SeaMonster Terms of Service

Seamonster Solution Terms Of Service

These Terms of Service were last updated on December 17, 2021.
The following terms of service (the “Terms of Service”) govern your use of the SeaMonster Platform. By visiting, browsing, accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the SeaMonster Platform (such person, the “Customer”) you are entering into these Terms of Service with SeaMonster Technologies Inc. (“SeaMonster”) (SeaMonster and the Customer, the “Parties” and each a “Party”). These Terms of Service are effective on the earlier of: (a) the date Customer first uses any part of the SeaMonster Platform; and (b) the date Customer agrees to be bound by these Terms of Service (the “Effective Date”).

BY USING THE SEAMONSTER PLATFORM, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 9(l). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SEAMONSTER PLATFORM. CUSTOMER REPRESENTS AND WARRANTS TO SEAMONSTER THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THESE LEGALLY BINDING TERMS OF SERVICE. IF CUSTOMER IS USING THE SEAMONSTER PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO SEAMONSTER THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THESE TERMS OF SERVICE.

1. SeaMonster Platform

Provisioning of the SeaMonster Platform. Subject to the Customer’s and its Permitted Users’ compliance with these Terms of Service, SeaMonster will make commercially reasonable efforts to make available its platform as a software as a service, which is designed to provide its proprietary sales performance management and behavioural analysis solution (the “SeaMonster Platform”), and may provide additional services (i.e. support services) to Customer in affiliation with the SeaMonster Platform (the “SeaMonster Solution”).
Restrictions on Use. The Customer will not itself, nor will it permit others to:
1. sub-license, sell, rent, lend, lease or distribute the SeaMonster Platform or any intellectual property rights therein, or otherwise make the SeaMonster Platform available to others;
2. use or access the SeaMonster Platform (A) in violation of any applicable law or intellectual property right, (B) in a manner that threatens the security or functionality of the SeaMonster Platform, or (C) for any purpose or in any manner not expressly permitted in these Terms of Service;
3. use the SeaMonster Platform to create, collect, transmit, store, use or process any data, information, content, records, and files that the Customer (or any of its Permitted Users) loads, receives through, transmits to or enters into the SeaMonster Platform, including but not limited to Personal Information (collectively, “Customer Data”), other than in accordance with these Terms of Service:
  1. upload to the SeaMonster Platform or otherwise use the SeaMonster Platform in connection with any documents, information or data that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
  2. upload to the SeaMonster Platform or otherwise use the SeaMonster Platform in connection with any documents, information or data that the Customer does not have the lawful right to create, collect, transmit, store, use or process; or
  3. upload to the SeaMonster Platform or otherwise use the SeaMonster Platform in connection with any documents, information or data that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
4. Modify the SeaMonster Platform;
5. reverse engineer, de-compile or disassemble the SeaMonster Platform;
6. remove or obscure any proprietary notices or labels on the SeaMonster Platform, including brand, copyright, trademark and patent or patent pending notices;
7. access or use the SeaMonster Platform for the purpose of building a similar or competitive product or service; or
8. perform any vulnerability, penetration or similar testing of the SeaMonster Platform.
Suspension of Access; Scheduled Downtime; Modifications. SeaMonster may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under these Terms of Service:
1. suspend the Customer’s access to or use of the SeaMonster Platform:
  1. for scheduled maintenance;
  2. due to a Force Majeure Event;
  3. if Provider believes in good faith that the Customer or any Permitted User has violated any provision of these Terms of Service; or
    to address any emergency security concerns;
  4. if required to do so by a regulatory body or as a result of a change in applicable law; and
2. make any modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations (collectively, “Modifications”) to the SeaMonster Platform.
Subcontracting. SeaMonster may engage third parties to provide the SeaMonster Platform, including cloud providers

2. Ownership; Reservation of Rights

The Customer retains all ownership and intellectual property rights in and to the Customer Data. The Customer grants to SeaMonster a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to access, collect, use, process, store, disclose and transmit the Customer Data to: (i) provide the SeaMonster Solution; (ii) improve and enhance the SeaMonster Solution and its other offerings; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). SeaMonster may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to the Customer of any kind.
SeaMonster or its licensors retain all ownership and intellectual property rights in and to: (i) the SeaMonster Solution; (ii) anything developed or delivered by or on behalf of SeaMonster under these Terms of Service; and (iii) any Modifications to the foregoing (i) and (ii).
To the extent that the Customer or any Permitted User submits ideas, suggestions, documents, or proposals regarding the SeaMonster Solution to SeaMonster (“Feedback”), the Customer acknowledges and agrees that:
1. 1. The Feedback does not contain confidential or proprietary information and SeaMonster is not under any obligation of confidentiality with respect to the Feedback; andb. SeaMonster will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to the Customer for such use.
  2. SeaMonster will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to the Customer for such use.
All rights not expressly granted by SeaMonster to the Customer under these Terms of Service are reserved by SeaMonster.

3. Privacy

Personal Information. Customer will comply with all applicable federal, provincial and local laws, rules and regulations (“Privacy Laws”) concerning the privacy and security of personally identifiable information (“Personal Information”). Customer will provide reasonable assistance to SeaMonster in order to allow the Parties to comply with their respective obligations under Privacy Laws. The Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with SeaMonster’s privacy policy located at seamonster.com/legal/privacy (the “Privacy Policy”).
Customer Obligations. The Customer represents, warrants and covenants that it has and will continue to maintain all necessary authority and consent under applicable Privacy Laws to transfer Personal Information to SeaMonster and for the purposes of SeaMonster and its subcontractors performing the SeaMonster Solution hereunder.

4. Customer User Account

Upon the Customer’s request, SeaMonster will issue one or more administrator accounts (the “Administrator Accounts”) to the Customer that provides the Customer with the capability to create user accounts (each, a “Customer User Account”) for use solely by the Customer and individuals who are employees or independent contractors of the Customer that the Customer wishes to have access to and use of the SeaMonster Platform (each user, and each administrator, a “Permitted User”). The Customer will ensure that Permitted Users only use the SeaMonster Platform through the Customer User Account. The Customer will not provide credentials for its Administrator Accounts or Customer User Accounts to any other person, nor will the Customer allow any Permitted User to share the Customer User Account with any other person. The Customer will promptly notify SeaMonster Platform of any actual or suspected unauthorized use of the SeaMonster Platform. SeaMonster reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose. The Customer will ensure that all individual users of the SeaMonster Platform, including Permitted Users, are contractually bound to terms and conditions with the Customer that are no less restrictive or protective of SeaMonster’s rights than those set forth in these Terms of Service.

5. Confidential Information

Definitions. For the purposes of these Terms of Service, a Party or its affiliates, customers, employees, licensors or suppliers receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into these Terms of Service, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business. Where the Discloser is the Customer, Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times following the Term it will not, except to exercise its license rights or perform its obligations under these Terms of Service: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates that have a “need to know” and that have entered into written an agreement no less protective of such Confidential Information than these Terms of Service, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
Exceptions to Confidentiality. Notwithstanding Section 5(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of SeaMonster, to potential assignees, acquirers or successors of SeaMonster if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of SeaMonster.

6. Warranty; Disclaimer; Indemnity

Customer Warranty. The Customer represents and warrants to, and covenants with SeaMonster that the Customer Data will only contain Personal Information in respect of which the Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable SeaMonster to provide the SeaMonster Platform, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, which may include transmissions by or to SeaMonster and to or from all applicable third parties.
GENERAL DISCLAIMER. SEAMONSTER DOES NOT WARRANT THAT THE SEAMONSTER SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SEAMONSTER SOLUTION. EXCEPT AS SPECIFICALLY PROVIDED IN THESE TERMS OF SERVICE, THE SEAMONSTER SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY TECHNOLOGY THAT IS LICENSED UNDER SEPARATE LICENSE TERMS NOT UNDER THESE TERMS OF SERVICE IS STRICTLY BETWEEN THE CUSTOMER AND THE THIRD PARTY.TO THE EXTENT PERMITTED BY APPLICABLE LAW, SEAMONSTER HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SEAMONSTER EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO THE CUSTOMER IN CONNECTION WITH THE CUSTOMER’S USE OF THE SEAMONSTER SOLUTION (OR ANY PART OF THEM) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY THE CUSTOMER FOR ANY PURPOSE WHATSOEVER.
Customer Indemnity. The Customer will defend, indemnify and hold harmless SeaMonster, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Permitted Users) claims (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) the Customer Data; (ii) the Customer’s breach of any of the Customer’s obligations, representations, warranties or covenants under these Terms of Service; or (iii) use of the SeaMonster Solution (or any part of them) by the Customer or any Permitted User in combination with any third party software, application or service. The Customer will fully cooperate with SeaMonster in the defense of any claim defended by the Customer pursuant to its indemnification obligations under these Terms of Service and will not settle any such claim without the prior written consent of SeaMonster.

7. Limitation of Liabilities

TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL SEAMONSTER BE LIABLE TO THE CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, DIRECT INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS OF SERVICE, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES. IN ANY EVENT AND WITHOUT LIMITING THE FOREGOING, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF SEAMONSTER IN CONNECTION WITH THE SEAMONSTER SOLUTION OR UNDER THESE TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED ONE HUNDRED DOLLARS ($100). FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THESE TERMS OF SERVICE WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL SEAMONSTER’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THESE TERMS OF SERVICE.

8. Term and Termination

Term. These Terms of Service commence on the Effective Date and continues until terminated by either Party (“Term”).
Termination for Cause. Either Party may, in addition to other relief, terminate these Terms of Service if the other Party commits a material breach of these Terms of Service and fails within 30 calendar days after receipt of notice of such breach to correct such material breach.
Termination for Convenience. Unless otherwise agreed to by the parties, SeaMonster may terminate these Terms of Service for convenience, at any time, by providing written notice to you.
Survival. The following Sections, together with any other provision of these Terms of Service which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of these Terms of Service, will survive expiration or termination of these Terms of Service for any reason: Section 2 (Ownership; Reservation of Rights), Section 3 (Privacy), Section 5 (Confidential Information), Section 6 (Warranty; Disclaimer; Indemnity), Section 7 (Limitation of Liabilities), Section 8(d) (Survival), and Section 9 (General Provisions).

9. General Provisions

Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to SeaMonster, to the following address:
Attention: Legal Department
Email: legal@seamonster.com
and (ii) if to the Customer, to the current postal or email address that SeaMonster has on file with respect to the Customer. The Customer is solely responsible for keeping its contact information on file with SeaMonster current at all times during the Term.
Publicity. Notwithstanding any other term of these Terms of Service, SeaMonster may refer to the Customer as a customer of SeaMonster in announcements, press or marketing releases, publications, presentations, case studies and other public statements (collectively, “Publicity”), without notice to or prior written consent of the Customer. SeaMonster may use the Customer’s name, logo and trademark in conjunction with any Publicity and disclose the existence of these Terms of Service, the SeaMonster Solution provided to the Customer and any testimonials received from the Customer in any such Publicity. The Customer grants SeaMonster a limited, perpetual, fully paid-up, irrevocable, non-exclusive, non-transferable, and non-sublicensable license to use its logo and trademarks in connection with any Publicity
Assignment. The Customer will not assign these Terms of Service to any third party without SeaMonster’s prior written consent. SeaMonster may assign this Terms of Service or any rights under these Terms of Service to any third party without the Customer’s consent. These Terms of Service will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
Governing Law and Attornment. These Terms of Service and any action related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with these Terms of Service in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting in The U.N. Convention on Contracts for the International Sale of Goods will not apply to these Terms of Service. This choice of jurisdiction does not prevent SeaMonster from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
Export Restrictions. The Customer will comply with all export laws and regulations that may apply to its access to or use of the SeaMonster Platform.
Construction. Except as otherwise provided in these Terms of Service, the Parties’ rights and remedies under these Terms of Service are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of these Terms of Service are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, means the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
Force Majeure Event. Neither party will be liable for delays, non-performance or underperformance under these Terms of Service if that party’s performance of obligations under these Terms of Service is materially hampered, interrupted, or interfered with; or illegal, impossible, or so difficult or expensive as to be commercially impracticable; or by reason of any fire, casualty, lockout, strike, labor conditions, unavoidable accident, riot, war, act of terrorism, epidemic, pandemic, public health emergency, or act of God, including inclement weather that requires the closure of or limitation of services on either party’s facilities; or by any other unforeseeable event beyond the parties’ control; or by the enactment, issuance, or operation of any applicable law; or by any local or national emergency (“Force Majeure”).
Severability. Any provision of these Terms of Service found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from these Terms of Service and all other provisions of these Terms of Service will remain in full force and effect.
Waiver. A waiver of any provision of these Terms of Service must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions
Nature of Relationship. This Agreement facilitates an arm’s length transaction between SeaMonster and the Customer, there is no employment relationship between SeaMonster and the Customer and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to bind the other Party.
Entire Agreement. These Terms of Service constitutes the entire agreement between the Parties with respect to the subject matter of these Terms of Service and supersedes all prior or contemporaneous agreements representations or other communications between the Parties, whether written or oral. The Parties acknowledge that they may have entered into another signed agreement with respect to the SeaMonster Solution. In the event of any inconsistency or conflict, such other signed agreement will prevail to the extent of such inconsistency or conflict.
Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of these Terms of Service and, unless otherwise expressly specified in these Terms of Service, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby, NOTWITHSTANDING THE PRECEDING SENTENCE, SEAMONSTER MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT. UNLESS OTHERWISE INDICATED BY SEAMONSTER, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER.
G Suite Marketplace. If the SeaMonster Platform is provided to the Customer through Google Inc.’s (Google Inc. together with all of its affiliates, “Google”) G Suite Marketplace, Customer acknowledges that Google is not the developer of, and will not be responsible for providing support services for, the SeaMonster Platform. If any of the terms and conditions in these Terms of Service are inconsistent or in conflict with the Google Cloud Vendor Marketplace Agreement (the current version of which is located at https://cloud.google.com/marketplace/docs/partners/terms), the terms and conditions of the Google Cloud Vendor Marketplace Agreement will prevail to the extent of such inconsistency or conflict.

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