Software Subscription Agreement

SOFAR OCEAN TECHNOLOGIES SOFTWARE SUBSCRIPTION AGREEMENT

This Software Subscription Agreement (this “Agreement”), effective as of the date (“the Effective Date”) identified in the Order Form is by and between Sofar Ocean Technologies, Inc. (“Company”) and the customer identified in the Order Form (“Customer”).  This Agreement incorporates the Order Form by reference.  Company and Customer may be referred to herein collectively as the “Parties” or individually as a “Party”.

RECITALS

A.          Company operates the Subscription Services and provides access to its customers; and

B.          Customer desires to access and use the Subscription Services, and Company is willing to provide such access, subject to the terms and conditions of this Agreement.

NOW, THEREFORE, in consideration of the mutual covenants, terms, and conditions set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:

1.          SUBSCRIPTION SERVICES; ACCESS AND USE.

(a)        Subscription Services.  Subject to the terms and conditions of this Agreement, Company hereby grants Customer a limited, non-exclusive, non-transferable (except in compliance with Section 11(f)) right to Use the Subscription Services during the Term, solely for Customer’s internal business purposes in accordance with, and subject to, the Usage Metrics.

(b)        Use Restrictions.  Customer will not at any time and will not permit any Person (including, without limitation, Authorized Users) to, directly or indirectly: (i) Use the Subscription Services or Weather Buoy in any manner beyond the scope of rights expressly granted in this Agreement; (ii) modify, republish, or create derivative works of the Subscription Services, Weather Buoy or Documentation, in whole or in part; (iii) reverse engineer, disassemble, decompile, decode or otherwise attempt to derive or gain improper access to any software component or observational data set of the Subscription Services or Weather Buoy, in whole or in part; (iv) frame, mirror, sell, resell, rent or lease Use of the Subscription Services or Weather Buoy to any other Person, or otherwise allow any Person to Use the Subscription Services or Weather Buoy for any purpose other than for the benefit of Customer in accordance with this Agreement; (v) Use the Subscription Services, Weather Buoy or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Person, or that violates any applicable law; (vi) interfere with, or disrupt the integrity or performance of, the Subscription Services or Weather Buoy, or any data or content contained therein or transmitted thereby; (vii) access or search the Subscription Services or Weather Buoy (or download any data or content contained therein or transmitted thereby) through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers or any other similar data mining tools) other than software or Subscription Services features provided by Company for use expressly for such purposes; or (viii) Use the Subscription Services, Weather Buoy, Documentation or any other Company Confidential Information for benchmarking or competitive analysis with respect to competitive or related products or services, or to develop, commercialize, license or sell any product, service or technology that could, directly or indirectly, compete with the Subscription Services.

(c)         Authorized Users.  Customer will not allow any Person other than Authorized Users to Use the Subscription Services.  Customer may permit Authorized Users to Use the Subscription Services, provided that (i) the Use, including the number of Authorized Users, does not exceed the Usage Metrics; and (ii) Customer ensures each Authorized User complies with all applicable terms and conditions of this Agreement and Customer is responsible for acts or omissions by Authorized Users in connection with their Use of the Subscription Services.  Customer will, and will require all Authorized Users to, use all reasonable means to secure user names and passwords, hardware and software used to access the Subscription Services in accordance with customary security protocols, and will promptly notify Company if Customer knows or reasonably suspects that any user name and/or password has been compromised. 

(d)        Buoy Deployments.  If mutually agreed to by the Parties, Company may provide Customer with certain Weather Buoys for deployment by Customer in areas of interest to Customer.  In all such instances, Customer shall (i) be the importer and exporter of record and responsible for obtaining licenses, paying taxes, fees, duties, and customs fees, as well as any other governmental or other taxes or fees, and preparing and submitting all required documentation required in connection with importing the Weather Buoys and (ii) ensure that Customer’s use and deployment of Weather Buoys is in compliance with all local, state, national, and international laws and regulations, including environmental laws and regulations, and Customer shall secure all necessary permits or permissions required for use or deployment of Weather Buoys and collection of data therefrom.

(e)        Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Company reserves and, as between the Parties will solely own, the Company IP and all rights, title and interest in and to the Company IP.  No rights are granted to Customer hereunder (whether by implication, estoppel, exhaustion or otherwise) other than as expressly set forth herein.

(f)         Feedback.  From time to time Customer or its employees, contractors, or representatives may provide Company with suggestions, comments, feedback or the like with regard to the Subscription Services (collectively, “Feedback”).  Customer hereby grants Company a perpetual, irrevocable, royalty-free and fully-paid up license to use and exploit all Feedback in connection with Company’s business purposes, including, without limitation, the testing, development, maintenance and improvement of the Subscription Services.

2.          FEES AND PAYMENT.

(a)        Fees.  Customer will pay Company the non-refundable fees set forth in the relevant Order Form in accordance with the terms therein (“Fees”) and without offset or deduction.  Except as otherwise provided in the relevant Order Form, Company will issue monthly invoices to Customer during the Term, and Customer will pay all amounts set forth on any such invoice no later than thirty (30) days after the date of such invoice.  If Customer has signed up for automatic billing, Company will charge Customer’s selected payment method (such as a credit card, debit card, gift card/code, or other method available in Customer’s home country) for any Fees on the applicable payment date, including any applicable taxes.  If Company cannot charge Customer’s selected payment method for any reason (such as expiration or insufficient funds), Customer remains responsible for any uncollected amounts, and Company will attempt to charge the payment method again as Customer may update its payment method information.  In accordance with local law, Company may update information regarding Customer’s selected payment method if provided such information by Customer’s financial institution.

(b)        Payments.  Payments due to Company under this Agreement must be made in U.S. dollars by check, wire transfer of immediately available funds to an account designated by Company or such other payment method mutually agreed by the Parties.  All payments are non-refundable and neither Party will have the right to set off, discount or otherwise reduce or refuse to pay any amounts due to the other Party under this Agreement.  If Customer fails to make any payment when due, late charges will accrue at the rate of 1.5% per month or, if lower, the highest rate permitted by applicable law and Company may suspend Subscription Services until all payments are made in full.  Customer will reimburse Company for all reasonable costs and expenses incurred (including reasonable attorneys’ fees) in collecting any late payments or interest.

(c)         Taxes.  Customer is responsible for paying or reimbursing Company for all taxes, other than any taxes imposed on Company’s income, or for providing Company with a tax exemption certificate acceptable to the taxing authorities.

3.          CONFIDENTIAL INFORMATION.

(a)        As used herein, “Confidential Information” means any information that one Party (the “Disclosing Party”) provides to the other Party (the “Receiving Party”) in connection with this Agreement, whether orally or in writing, that is designated as confidential or that reasonably should be considered to be confidential given the nature of the information and/or the circumstances of disclosure.  However, Confidential Information will not include any information or materials that: (i) were, at the date of disclosure, or have subsequently become, generally known or available to the public through no act or failure to act by the Receiving Party; (ii) were rightfully known by the Receiving Party prior to receiving such information or materials from the Disclosing Party; (iii) are rightfully acquired by the Receiving Party from a third party who has the right to disclose such information or materials without breach of any confidentiality or non-use obligation to the Disclosing Party; or (iv) are independently developed by or for the Receiving Party without use of or access to any Confidential Information of the Disclosing Party.  Without limiting the foregoing, nothing in this Agreement will limit or restrict Company’s ability to use or disclose any general know-how, experience, concepts and/or ideas that Company or its personnel acquire or obtain in connection with the performance of Company’s obligations hereunder.

(b)        The Receiving Party will maintain the Disclosing Party’s Confidential Information in strict confidence, and will not use the Confidential Information of the Disclosing Party except as necessary to perform its obligations or exercise its rights under this Agreement; provided that Company may use and modify Confidential Information of Customer in deidentified form.  The Receiving Party will not disclose or cause to be disclosed any Confidential Information of the Disclosing Party, except (i) to those employees, representatives, or contractors of the Receiving Party who have a bona fide need to know such Confidential Information to perform under this Agreement and who are bound by written agreements with use and nondisclosure restrictions at least as protective as those set forth in this Agreement, or (ii) as such disclosure may be required by the order or requirement of a court, administrative agency or other governmental body, subject to the Receiving Party providing to the Disclosing Party reasonable written notice to allow the Disclosing Party to seek a protective order or otherwise contest the disclosure.

(c)         Each Party’s obligations of non-disclosure with regard to Confidential Information are effective as of the Effective Date and will expire five (5) years from the date first disclosed to the Receiving Party; provided, however, with respect to any Confidential Information that constitutes a trade secret (as determined under applicable law), such obligations of non-disclosure will survive the termination or expiration of this Agreement for as long as such Confidential Information remains subject to trade secret protection under applicable law.

(d)        The terms and conditions of this Agreement will constitute Confidential Information of each Party but may be disclosed on a confidential basis to a Party’s advisors, attorneys, actual or bona fide potential acquirers, investors or other sources of funding (and their respective advisors and attorneys) for due diligence purposes.

4.          CUSTOMER MATERIALS AND DATA.

(a)        Company acknowledges that, as between Customer and Company and except as set forth in Section 4(b), Customer owns and retains all right, title and interest in and to all Customer Materials.

(b)        Customer hereby grants Company a non-exclusive, worldwide, royalty-free right and license to use, host, reproduce, display, perform, modify the Customer Materials solely for the purpose of hosting, operating, improving and providing the Subscription Services, Professional Services and Company’s other related products, services and technologies during the Term.   

(c)         Customer represents and warrants that (i) it has obtained and will obtain and continue to have, during the Term, all necessary rights, authority and licenses for the access to and use of the Customer Materials (including any personal data provided or otherwise collected pursuant to Customer’s privacy policy) as contemplated by this Agreement and (ii) Company’s use of the Customer Materials in accordance with this Agreement will not violate any applicable laws or regulations or cause a breach of any agreement or obligations between Customer and any third party.

5.          REPRESENTATIONS AND WARRANTIES. 

Each Party hereby represents and warrants to the other Party that: (i) it is duly organized, validly existing and in good standing under its jurisdiction of organization and has all necessary rights, permissions and authority to enter into this Agreement and (ii) the execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.

6.          INDEMNIFICATION.

(a)        Customer Indemnification.  Subject to Section 6(b), Customer will defend Company against any claim, suit or proceeding brought by a third party (“Claims”) arising from (i) any Customer Materials, including, without limitation, (A) any Claim that the Customer Materials infringe, misappropriate or otherwise violate any third party’s Intellectual Property Rights or privacy or other rights; or (B) any Claim that the use, provision, transmission, display or storage of Customer Materials violates any applicable law, rule or regulation; (ii) any of Customer’s products or services; and (iii) Use of the Subscription Services or other Company IP by Customer or its Authorized Users in a manner that is not in accordance with this Agreement or the Documentation, including, without limitation, any breach of the license restrictions in Section 1(b), and in each case, will indemnify and hold harmless Company against any damages and costs awarded against Company or agreed in settlement by Customer (including reasonable attorneys’ fees) resulting from such Claim.

(b)        Indemnification Procedures.  Company will notify Customer of any Claim for which indemnity is being sought after becoming aware of it, and will reasonably cooperate with Customer in the defense and/or settlement thereof, at Customer’s expense.  Customer will have the sole right to conduct the defense of any Claim for which Customer is responsible hereunder (provided that the Customer may not settle any Claim without Company’s prior written approval unless the settlement is for a monetary amount, unconditionally releases Company from all liability without prejudice, does not require any admission by Company, and does not place restrictions upon Company’s business, products or services).  Company may participate in the defense or settlement of any such Claim at its own expense and with its own choice of counsel or, if Customer refuses to fulfill its obligation of defense, Company may defend itself and seek reimbursement from Customer.

7.          DISCLAIMER OF WARRANTIES.

THE SUBSCRIPTION SERVICES, PROFESSIONAL SERVICES AND OTHER COMPANY IP ARE PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.  WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  WE MAKE NO WARRANTY THAT THE SUBSCRIPTION SERVICES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, BUG-FREE OR ERROR-FREE BASIS.  WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF THE SUBSCRIPTION SERVICES.

CUSTOMER ASSUMES ALL RESPONSIBILITY AND RISK FOR THE USE OF THE SUBSCRIPTION SERVICES AND COMPANY IP, AND COMPANY DISCLAIMS ALL LIABILITY FOR ANY LOSS, INJURY OR DAMAGE RESULTING FROM USE OF THE SUBSCRIPTION SERVICES, INCLUDING, BUT NOT LIMITED TO, SHIP DAMAGE, CARGO LOSS OR PERSONAL INJURY, WHETHER DIRECT OR INDIRECT, AND WHETHER OR NOT COMPANY HAS BEEN ADVISED OF OR HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH LOSS, INJURY OR DAMAGE.  CUSTOMER MAY FIND THAT ACTUAL CONDITIONS DIFFER FROM THE SUBSCRIPTION SERVICES CONTENT.  WHEN CUSTOMER USES THE SUBSCRIPTION SERVICES, CUSTOMER AGREES TO TAKE REASONABLE PRECAUTIONS, INCLUDING, BUT NOT LIMITED TO, USING AN APPROPRIATE SHIP, CREW AND CAPTAIN, AND TO EXERCISE INDEPENDENT JUDGMENT.  CUSTOMER IS RESPONSIBLE AT ALL TIMES FOR CUSTOMER’S ULTIMATE SHIP OPERATION AND ROUTING DECISIONS, AS WELL AS CUSTOMER’S CONDUCT AND CONSEQUENCES OF SUCH CONDUCT.

8.          LIMITATIONS OF LIABILITY.

(a)        Exclusion of Damages.  EXCEPT FOR: (I) ANY INFRINGEMENT BY ONE PARTY OF THE OTHER PARTY’S INTELLECTUAL PROPERTY RIGHTS, (II) FRAUD OR WILFUL MISCONDUCT BY EITHER PARTY, OR (III) BREACH OF CUSTOMER’S PAYMENT OBLIGATIONS, NEITHER PARTY WILL BE LIABLE TO THE OTHER OR ANY OTHER PERSON OR ENTITY FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR ANY LOSS OF INCOME, DATA, PROFITS, REVENUE OR BUSINESS INTERRUPTION, OR THE COST OF COVER OR SUBSTITUTE SERVICES OR OTHER ECONOMIC LOSS, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES AND PROFESSIONAL SERVICES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT SUCH PARTY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE, OR SUCH LOSS OR DAMAGE IS FORESEEABLE.

(b)        Total Liability.  IN NO EVENT WILL COMPANY’S TOTAL LIABILITY TO CUSTOMER OR ITS AUTHORIZED USERS IN CONNECTION WITH THIS AGREEMENT, THE COMPANY IP OR THE PROVISION OF THE SUBSCRIPTION SERVICES OR PROFESSIONAL SERVICES EXCEED THE FEES ACTUALLY PAID TO COMPANY FOR THE SINGLE ROUTE GUIDANCE FROM WHICH THE CLAIM AROSE, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY ON WHICH THE CLAIM OR LIABILITY IS BASED, AND WHETHER OR NOT COMPANY WAS ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE.

(c)         Basis of the Bargain.  THE PARTIES HEREBY ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION 8 ARE AN ESSENTIAL PART OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND CUSTOMER, AND WILL APPLY EVEN IF THE REMEDIES AVAILABLE HEREUNDER ARE FOUND TO FAIL THEIR ESSENTIAL PURPOSE.

9.          TERM AND TERMINATION.

(a)        Term.  The initial term of this Agreement begins on the Effective Date and expires at the end of the Initial Term specified in the relevant Order Form (the “Initial Term”).  Following the Initial Term, this Agreement will automatically renew for additional periods of the same duration as the Initial Term (each, a “Renewal Term,” and together with the Initial Term, the “Term”), unless either Party provides the other with at least thirty (30) days’ written notice of its intent not to renew this Agreement prior to the end of the then-current Term.

(b)        Termination.  Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach.  Notwithstanding the foregoing, Company may terminate this agreement for any reason by providing thirty (30) days written notice to Customer.

(c)         Survival.  This Section 9(c) and Sections 1(b), 1(c), 1(f), 2, 3, 4, 5, 6, 7, 8, 9(d) and 11 survive any termination or expiration of this Agreement.

(d)        Effect of Termination.  Upon expiration or termination of this Agreement: (i) the rights granted pursuant to Section 1(a) will terminate; and (ii) Customer will return or destroy, at Company’s sole option, all Company Confidential Information in its possession or control, including permanent removal of such Company Confidential Information (consistent with customary industry practice for data destruction) from any storage devices or other hosting environments that are in Customer’s possession or under Customer’s control, and at Company’s request, certify in writing to Company that the Company Confidential Information has been returned, destroyed or, in the case of electronic communications, deleted.  No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due or otherwise accrued through the effective date of expiration or termination, or entitle Customer to any refund.

10.       TRADEMARKS. 

Customer hereby grants Company a limited, non-exclusive, royalty-free license to use and display Customer’s name, designated trademarks and associated logos (the “Customer Marks”) during the Term in connection with (i) the hosting, operation and maintenance of the Subscription Services; and (ii) Company’s marketing and promotional efforts for its products and services, including by publicly naming Customer as a customer of Company and case studies.  All goodwill and improved reputation generated by Company’s use of the Customer Marks inures to the exclusive benefit of Customer.  Company will use the Customer Marks in the form stipulated by Customer and will conform to and observe such standards as Customer prescribes from time to time in connection with the license granted hereunder.

11.       GENERAL.

(a)        Entire Agreement.  This Agreement, including its exhibits, is the complete and exclusive agreement between the Parties with respect to its subject matter and supersedes any and all prior or contemporaneous agreements, communications and understandings, both written and oral, with respect to its subject matter.  This Agreement may be amended or modified only by a written document executed by duly authorized representatives of the Parties.

(b)        Notices.  All notices required or permitted under this Agreement will be in writing, will reference this Agreement, and will be sent to the relevant address set forth in the Order Form, or to such other address as may be specified by the relevant Party to the other Party in accordance with this Section 11(b).  Such notices will be deemed given: (i) when delivered personally; (ii) one (1) business day after deposit with a nationally recognized express courier, with written confirmation of receipt; (iii) three (3) business days after having been sent by registered or certified mail, return receipt requested, postage prepaid; or (iv) when sent by email, on the date the email was sent without a bounce back message if sent during normal business hours of the receiving party, and on the next business day if sent after normal business hours of the receiving party.

(c)         Waiver.  Either Party’s failure to enforce any provision of this Agreement will not constitute a waiver of future enforcement of that or any other provision.  No waiver of any provision of this Agreement will be effective unless it is in writing and signed by the Party granting the waiver.

(d)        Severability.  If any provision of this Agreement is held invalid, illegal or unenforceable, that provision will be enforced to the maximum extent permitted by law, given the fundamental intentions of the Parties, and the remaining provisions of this Agreement will remain in full force and effect.

(e)        Governing Law; Jurisdiction.  This Agreement will be governed by and construed in accordance with the laws of the State of California without giving effect to any principles of conflict of laws that would lead to the application of the laws of another jurisdiction.  The Parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply.  Any legal action or proceeding arising under this Agreement will be brought exclusively in the federal or state courts located in San Francisco County, California and the Parties irrevocably consent to the personal jurisdiction and venue therein.

(f)         Assignment.  Neither Party may assign or transfer this Agreement, by operation of law or otherwise, without the other Party’s prior written consent.  Any attempt to assign or transfer this Agreement without such consent will be void.  Notwithstanding the foregoing, either Party may assign or transfer this Agreement to a third party that succeeds to all or substantially all of the assigning Party’s business and assets relating to the subject matter of this Agreement, whether by sale, merger, operation of law or otherwise.  Subject to the foregoing, this Agreement is binding upon and will inure to the benefit of each of the Parties and their respective successors and permitted assigns.

(g)        Equitable Relief.  Each Party agrees that a breach or threatened breach by such Party of any of its obligations under Section 3 or, in the case of Customer, Section 1(b), would cause the other Party irreparable harm and significant damages for which there may be no adequate remedy under law and that, in the event of such breach or threatened breach, the other Party will have the right to seek immediate equitable relief, including a restraining order, an injunction, specific performance and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy.  Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.

(h)        Force Majeure.  Neither Party will be responsible for any failure or delay in the performance of its obligations under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, which may include, without limitation, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, denial of service or other malicious attacks, telecommunications failure or degradation, pandemics, epidemics, public health emergencies, governmental orders and acts (including government-imposed travel restrictions and quarantines), material changes in law, war, terrorism, riot, or acts of God.

(i)          Subcontracting.  Company may use subcontractors, and other third-party providers (“Subcontractors”) in connection with the performance of its own obligations hereunder as it deems appropriate; provided that Company remains responsible for the performance of each such Subcontractor.  Notwithstanding anything to the contrary in this Agreement, with respect to any third-party vendors including any hosting (e.g. AWS) or payment vendors (e.g. PayPal), Company will use commercially reasonable efforts to guard against any damages or issues arising in connection with such vendors, but will not be liable for the acts or omissions of such third-party vendors except to the extent that it has been finally adjudicated that such damages or issues are caused directly from the gross negligence or willful misconduct of Company.

(j)          Export Regulation.  Customer will comply with all applicable federal laws, regulations and rules that prohibit or restrict the export or re-export of the Subscription Services or software, or any Customer Materials, outside the United States (“Export Rules”), and will complete all undertakings required by Export Rules, including obtaining any necessary export license or other governmental approval.

(k)        U.S. Government End Users.  The Subscription Services, software and Documentation are “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and other relevant government procurement regulations.  Any use, duplication, or disclosure of the software or its documentation by or on behalf of the U.S. government is subject to restrictions as set forth in this Agreement.

(l)          Relationship of the Parties.  The relationship between the Parties is that of independent contractors.  Nothing in this Agreement will be construed to establish any partnership, joint venture or agency relationship between the Parties.  Neither Party will have the power or authority to bind the other or incur any obligations on the other’s behalf without the other Party’s prior written consent.

(m)      No Third-Party Beneficiaries.  No provision of this Agreement is intended to confer any rights, benefits, remedies, obligations, or liabilities hereunder upon any Person other than the Parties and their respective successors and assigns.

(n)        Counterparts.  This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

 

EXHIBIT A – DEFINITIONS

DEFINITIONS.

(a)        “Authorized User” means an employee or contractor whom Customer has authorized to Use the Subscription Services.

(b)        “Company IP” means the Subscription Services, the underlying software provided in conjunction with the Subscription Services, algorithms, interfaces, technology, databases, tools, know-how, processes and methods used to provide or deliver the Subscription Services or any Professional Services, Weather Buoys and all data collected by the Weather Buoys, and Documentation, all improvements, modifications or enhancements to, or derivative works of, the foregoing (regardless of inventorship or authorship), and all Intellectual Property Rights in and to any of the foregoing.

(c)         “Customer Materials” means all information, data, content and other materials, in any form or medium, that is submitted, posted, collected, transmitted or otherwise provided by or on behalf of Customer through the Subscription Services or to Company in connection with Customer’s Use of the Subscription Services, but excluding, for clarity, any information, data, data models, content or materials owned or controlled by Company and made available through or in connection with the Subscription Services.

(d)        “Documentation” means the operator and user manuals, training materials, specifications, minimum system configuration requirements, compatible device and hardware list and other similar materials in hard copy or electronic form if and as provided by Company to Customer (including any revised versions thereof) relating to the Subscription Services, which may be updated from time to time upon notice to Customer.

(e)        “Intellectual Property Rights” means patent rights (including, without limitation, patent applications and disclosures), inventions, copyrights, trade secrets, know-how, data and database rights, mask work rights, and any other intellectual property rights recognized in any country or jurisdiction in the world.

(f)         “Order Form” means a (i) mutually executed order form or other mutually agreed upon ordering document; (ii) purchase order issued by Customer and accepted by Company in writing; or (iii) quote issued by Company and accepted by Customer, in each case which references this Agreement and sets forth the applicable Subscription Services and/or Professional Services to be provided by Company.

(g)        “Person” means any individual, corporation, partnership, trust, limited liability company, association, governmental authority or other entity.

(h)        “Professional Services” means the implementation and/or other professional services, if any, to be provided by Company to Customer as set forth in the relevant Order Form.

(i)          “Subscription Services” means Company’s platform, offering ocean weather forecasting, meteorological and oceanographic data, and ship routing guidance, including any updates, patches, bug fixes and upgrades to Company’s platform.

(j)          “Usage Metrics” means the limits, volume or other measurement or conditions of permitted Use for the applicable Subscription Service as set forth in the relevant Order Form, including any limits on the number of Authorized Users permitted to Use the Subscription Services based on Customer’s subscription tier.

(k)        “Use” means to use and access the Subscription Services or Weather Buoy in accordance with this Agreement and the Documentation.

(l)        “Weather Buoy” means any oceanographic and meteorological instrumentation as provided by Company to Customer for use in relation to the Subscription Services.


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