SUBSCRIPTION SERVICES AGREEMENT
This agreement is between Vessel Management LLC, a Florida limited liability company (MMV), and the Customer agreeing to these terms (Customer), effective as of the date of the last signature below.
1. SOFTWARE SERVICE.
This agreement provides Customer access to and usage of an Internet-based software service, including, without limitation, its features, functions, and user interface, as specified on a service order (Service). Additional services, including but not limited to white labeling and training (Additional Services), as well as an offline client (Offline Client) may be provided by MMV if specified under a service order.
2. USE OF SERVICE.
a. Customer Owned Data. All data uploaded by Customer to the Service remains the property of Customer, as between MMV and Customer (Customer Data). Customer grants MMV the right to use the Customer Data solely for purposes of performing under this agreement. During the term of this agreement, Customer may export Customer Data as allowed by functionality within the Service.
b. Access and Usage. Customer may allow its employees, contractors and clients to access the Service in compliance with the terms of this agreement, which access must be for the sole benefit of Customer or its clients. Customer is responsible for the compliance with this agreement by its employees and contractors. Customer clients must agree to separate terms and conditions prior to use of the Service.
c. Customer Customer: (i) must keep its passwords secure and confidential; (ii) is solely responsible for Customer Data and all activity in its account in the Service; (iii) must use commercially reasonable efforts to prevent unauthorized access to its account, and notify MMV promptly of any such unauthorized access; and (iv) may use the Service only in accordance with the Service's user guide and applicable law.
d. MMV Support. MMV must provide Customer support for the Service under the terms of MMV's Customer Support Policy (Support), which is located at support.managemyvessel.com.
e. 30-Day Trial Version. If Customer has registered for a trial use of the Service, Customer may access the Service for a 30-day time period (unless extended by MMV in writing). The Service is provided 'AS IS', with no warranty during this time period. All Customer Data will be deleted after the trial period, unless Customer converts its account to a paid Service.
3. WARRANTY DISCLAIMER.
THE SERVICE IS PROVIDED ‘AS IS' WITHOUT WARRANTY. MMV DISCLAIMS ALL WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE. WHILE MMV TAKES REASONABLE PHYSICAL, TECHNICAL, AND ADMINISTRATIVE MEASURES TO SECURE THE SERVICE, MMV DOES NOT GUARANTEE THAT THE SERVICE CANNOT BE COMPROMISED. CUSTOMER UNDERSTANDS THAT THE SERVICE MAY NOT BE ERROR FREE, AND USE MAY BE INTERRUPTED.
Customer must pay all fees as specified on the service order, but if not specified, then within 30 days of receipt of an invoice. Customer is responsible for the payment of all sales, use, withholding, VAT, and other similar taxes. This agreement contemplates one or more service orders for the Service, which service orders are governed by the terms of this agreement. MMV may annually increase the fees on the service order by the greater of (i) 3%, or (ii) the prior year’s annual average increase in the Bureau of Labor Statistics’ Consumer Price Index.
5. MUTUAL CONFIDENTIALITY.
a. Definition of Confidential Information. Confidential Information means all non-public information disclosed by a party (Discloser) to the other party (Recipient), whether orally, visually, or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure (Confidential Information). MMV's Confidential Information includes, without limitation, the Service, its user interface design and layout, and pricing information, and the Software and Documentation (defined below). Customer's Confidential Information includes, without limitation, the Customer Data.
b. Protection of Confidential Information. The Recipient must use the same degree of care that it uses to protect the confidentiality of its own confidential information (but in no event less than reasonable care), and it may not disclose or use any Confidential Information of the Discloser for any purpose outside the scope of this agreement. The Recipient must make commercially reasonable efforts to limit access to Confidential Information of Discloser to those of its employees and contractors who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with Recipient no less restrictive than the confidentiality terms of this agreement.
c. Exclusions. Confidential Information excludes information that: (i) is or becomes generally known to the public without breach of any obligation owed to Discloser; (ii) was known to the Recipient prior to its disclosure by the Discloser without breach of any obligation owed to the Discloser; (iii) is received from a third party without breach of any obligation owed to Discloser; or (iv) was independently developed by the Recipient without use or access to the Confidential Information. The Recipient may disclose Confidential Information to the extent required by law or court order, but will provide Discloser with advance notice to seek a protective order.
a. Reservation of Rights. The Service and the Software and Documentation are the proprietary property of MMV and its licensors, and all right, title, and interest in and to the Service and the Software and Documentation, including all associated intellectual property rights, remain only with MMV. Customer may not remove or modify any proprietary marking or restrictive legends in the Service or Software and Documentation. MMV reserves all rights unless expressly granted in this agreement.
b. Restrictions. Customer may not: (i) sell, resell, rent, or lease the Service or use it in a service-provider capacity (except for providing access to its clients); (ii) use the Service to store or transmit unsolicited marketing emails, libelous, or otherwise objectionable, unlawful, or tortious material, or to store or transmit infringing material in violation of third-party rights; (iii) interfere with or disrupt the integrity or performance of the Service; (iv) attempt to gain unauthorized access to the Service or its related systems or networks; (v) reverse engineer the Service or the Software and Documentation; or (vi) access the Service or use the Software and Documentation to build a competitive service or product, or copy any feature, function, or graphic for competitive purposes.
c. Software and Documentation. All software provided by MMV as part of the Service, and the Service documentation, sample data, marketing materials, training materials, and other materials provided through the Service or by MMV (Software and Documentation) are licensed to Customer as follows: MMV grants Customer a non-exclusive, non-transferable license during the term of this agreement, to use and copy such Software in accordance with the Documentation, solely in connection with the Service. The Offline Client, if purchased, is part of the Software and Documentation.
d. Statistical Information. MMV may compile statistical information related to the performance of the Service and may make such information publicly available, provided that such information does not identify Customer Data, and there is no means to re-identify Customer Data. MMV retains all intellectual property rights in such information.
7. TERM AND TERMINATION.
a. Term. This agreement continues until all service orders have expired or are terminated for material breach under Section 7(b).
b. Mutual Termination for Material Breach. If either party is in material breach of this agreement, the other party may terminate this agreement at the end of a written 30-day notice/cure period, if the breach has not been cured.
c. Termination for Convenience. Customer may cancel its subscription to the Service at any time. To cancel send an email to email@example.com.
d. Return of Customer
i. Within 90 days after termination, upon written request and for an additional fee, MMV can provide Customer Data to Customer as described in 2(a)
ii. After such 90-day period, MMV has no obligation to maintain the Customer Data and may destroy it.
e. Return MMV Property Upon Termination. Upon termination of this agreement for any reason, Customer must: (i) pay MMV for any unpaid amounts, (ii) discontinue using the Software, de-install, and destroy or return the Software and all copies within 5 days, and (iii) destroy or return all other property of MMV. Upon MMV's request, Customer will confirm in writing its compliance with this destruction or return requirement.
f. Suspension for Violations of Law. MMV may temporarily suspend the Service and/or remove the applicable Customer Data if, as part of using the Service, Customer has violated a law. MMV will contact Customer in writing in advance 30 days prior to any such suspension.
g. Suspension for Non-Payment. MMV may temporarily suspend the Service if Customer is more than 30 days late on any payment due pursuant to a service order.
8. LIABILITY LIMIT.
a. Exclusion of Indirect Damages. MMV is not liable for any indirect, special, incidental, or consequential damages arising out of or related to this agreement (including, without limitation, costs of delay; loss of or unauthorized access to data or information; and lost profits, revenue, or anticipated cost savings), even if it knows of the possibility or foreseeability of such damage or loss.
b. Total Limit on Liability. Except for MMV's indemnity obligations, MMV's total liability arising out of or related to this agreement (whether in contract, tort, or otherwise) does not exceed the amount of Service subscription fees paid by Customer within the 3-month period prior to the event that gave rise to the liability.
9. DEFENSE OF THIRD-PARTY CLAIMS.
a. MMV will defend or settle any third-party claim against Customer to the extent that such claim alleges that MMV technology used to provide the Service violates a copyright, patent, trademark, or other intellectual property right, if Customer promptly notifies MMV of the claim in writing, cooperates with MMV in the defense, and allows MMV to solely control the defense or settlement of the claim. MMV will pay infringement claim defense costs it incurs in defending Customer, MMV-negotiated settlement amounts, and court-awarded damages. Process. If such a claim appears likely, then MMV may modify the Service, procure the necessary rights, or replace it with the functional equivalent. If MMV determines that none of these are reasonably available, then MMV may terminate the Service and refund any prepaid and unused fees. Exclusions. MMV has no obligation for any claim arising from: MMV's compliance with Customer's specifications; a combination of the Service with other technology or aspects where the infringement would not occur but for the combination; use of Customer Data; or technology or aspects not provided by MMV. THIS SECTION CONTAINS CUSTOMER'S EXCLUSIVE REMEDIES AND MMV'S SOLE LIABILITY FOR INTELLECTUAL PROPERTY INFRINGEMENT CLAIMS.
b. If a third party claims against MMV that any part of the Customer Data infringes or violates that party's patent, copyright, or other right, Customer will defend MMV against that claim at Customer's expense and pay all costs, damages, and attorneys’ fees that a court finally awards or that are included in a settlement approved by Customer, provided that MMV promptly notifies Customer of the claim in writing, cooperates with Customer in the defense, and allows Customer to solely control the defense or settlement of the claim.
10. GOVERNING LAW AND ARBITRATION.
This agreement is governed by the laws of the State of Florida (without regard to conflicts of law principles). Any dispute or claim between the parties arising out of or relating to this agreement, must be resolved exclusively through final and binding arbitration (rather than in court) under the then current commercial or international rules of the American Arbitration Association. Any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction. Nothing in this agreement prevents either party from seeking injunctive or equitable relief in any court of competent jurisdiction. The prevailing party in any arbitration is entitled to recover its attorneys’ fees and costs from the other party.
11. OTHER TERMS.
a. Entire Agreement and Changes. This agreement and the service order constitute the entire agreement between the parties and supersede any prior or contemporaneous negotiations or agreements, whether oral or written, related to this subject matter. Customer is not relying on any representation concerning this subject matter, oral or written, not included in this agreement. No representation, promise, or inducement not included in this agreement is binding. No modification or waiver of any term of this agreement is effective unless both parties sign it.
b. No Assignment. Neither party may assign or transfer this agreement to a third party, nor delegate any duty, except that the agreement and all service orders may be assigned, without the consent of the other party, as part of a merger or sale of all or substantially all the businesses or assets of a party.
c. Independent Contractors. The parties are independent contractors with respect to each other.
d. Enforceability and Force Majeure. If any term of this agreement is invalid or unenforceable, the other terms remain in effect. Except for the payment of monies, neither party is liable for events beyond its reasonable control, including, without limitation, force majeure events.
e. Money Damages Insufficient. Any breach by a party of this agreement or violation of the other party's intellectual property rights could cause irreparable injury or harm to the other party. The other party may seek a court order to stop any breach or avoid any future breach of this agreement.
f. No Additional Terms. MMV rejects additional or conflicting terms of a Customer's form-purchasing document.
g. Order of Precedence. If there is an inconsistency between this agreement and an service order, the service order prevails.
h. Survival of Terms. Any terms, that by their nature survive termination of this agreement for a party to assert its rights and receive the protections of this agreement, will survive (including, without limitation, the confidentiality terms). The UN Convention on Contracts for the International Sale of Goods does not apply.
i. Mobile Software. MMV may make available mobile software to access the Service via a mobile device (Mobile Software). To use the Mobile Software, Customer must have a mobile device that is compatible with the Mobile Software. MMV does not warrant that the Mobile Software will be compatible with Customer's mobile device. Customer may use mobile data in connection with the Mobile Software and may incur additional charges from Customer's wireless provider for these services. Customer agrees that it is solely responsible for any such charges. Customer acknowledges that MMV may, from time to time, issue upgraded versions of the Mobile Software, and may automatically electronically upgrade the version of the Mobile Software that Customer is using on its mobile device. Customer consents to such automatic upgrading on its mobile device, and agrees that the terms and conditions of this agreement will apply to all such upgrades.
j. Feedback. If Customer provides feedback or suggestions about the Service, then MMV (and those it allows to use its technology) may use such information without obligation to Customer.