IMPORTANT – PLEASE REVIEW CAREFULLY. By using SeisWare International Inc.’s online or telephone technical support and solutions you are subject to this Agreement.
This Agreement is entered into between the Customer (“you” or “your”) and SeisWare International Inc. (“SeisWare International”, “us” or “we”) You accept this Agreement upon:
A. your submission to us of an online or telephone request for Service, in verbal or written notice;
B. your accepting this Agreement electronically during registration or in the course of initiating a support session whether online or by telephone; or
C. your use of the Service.
This Agreement is made up of preamble, the terms herein, all attachments to this Agreement and any other policies and materials specifically referred to in this Agreement, all of which are incorporated herein by reference. The Agreement sets forth the terms and conditions under which you agree to use our Service, and under which SeisWare International agrees to provide Service to you. You may also request a paper copy of this Agreement by contacting us at 403-265-6606.
For the purposes of this Agreement, the following terms are defined as follows:
2.1. “SeisWare International” shall mean and include its directors, officers, employees, contractors, agents, successors or assigns;
2.2. “Service” shall mean all Software technical support, maintenance, products and services ordered by you or provided to you by SeisWare International;
2.3. “Software” shall mean, but is not limited to, Seisware®;
2.4. “Third Party Providers” shall mean and include all of SeisWare International’s third party licensors, providers and suppliers.
3. AUTHORIZED USER, USE AND RESPONSIBILITIES
3.1. You acknowledge and agree that you have the legal authority to enter into this Agreement and confirm that the information you supply to us is correct and complete. SeisWare International relies on the information you supply. Providing false or incorrect information may result in Service being withheld, delayed, suspended or terminated at the discretion of SeisWare International. In addition, if SeisWare International relies on this false or incorrect information this may result in SeisWare International providing Service that adversely affect the Client and SeisWare International shall not be responsible at any time for loss, alteration or corruption of the Software, your software, data or files.
3.2. You agree to promptly notify SeisWare International whenever your billing information changes (i.e., name, address, telephone number, and/or credit card number and expiration date).
3.3. You are responsible for all users on your account and computer systems. You accept full liability and responsibility for the actions of anyone who uses our Service via your account, or your computer systems, with or without your permission.
3.4. You agree it is your responsibility to back up all software and data that is stored on your computer’s hard disk drive(s) and on any other storage devices you may have prior to using the Service by SeisWare International or its Third Party Providers. SeisWare International or its Third Party Providers shall not be responsible at any time for loss, alteration or corruption of the Software, your software, data or files.
3.5. You agree that your computer systems meet the following minimum system requirements:
A. Windows XP Pro, or Windows XP Pro X64 edition; and
B. A functional DSL or cable high-speed Internet connection.
SeisWare International and its Third Party Providers reserve the right to refrain from providing all Service ordered on the basis that the minimum system requirements are not met or the technical needs (including wiring or overcoming physical or technical barriers) or other requirements of the Customer are unusual or extensive and beyond the scope of this Agreement as reasonably determined by SeisWare International or its Third Party Providers.
3.6. SeisWare International is not obliged to support the Software if the Customer is not using the versions of the operating system software as specified by the Software supplier from time to time, or if the Customer fails to maintain the Software at the supplier’s specified release or if the Software licence has expired.
3.7. Provision of the Service does not imply any guarantee or representation that SeisWare International will be able to assist the Customer in achieving any results from the Software which are not technically feasible. Subject to this, any services which are outside the scope of this Agreement will, at the Customer’s request and at SeisWare International’s option, be provided at SeisWare International’s then current rates for such services or as otherwise agreed between the parties.
4. PERMISSION TO CONNECT
4.1. The Customer hereby permits SeisWare International to remotely or directly access and connect to the Customer’s computer systems and network for the express purpose of providing Service. The Customer will cooperate in good faith to enable such connections to occur.
5.1. The parties recognize that under this Agreement they may each receive trade secrets and confidential or proprietary information of the other party, including but not limited to commercial information, products, customers, business accounts, finance or contractual arrangements or other dealings, program source and object codes. All such information which is either marked ‘Confidential’ or stated at the time of disclosure and subsequently confirmed in writing to be confidential constitutes ‘Confidential Information’. Each party agrees not to divulge Confidential Information received from the other to any of its employees, permitted agents and contractors who do not need to know it and to prevent its disclosure to or access by any third party without the prior written consent of the disclosing party.
5.2. Notwithstanding the foregoing, the parties also recognize that each may disclose Confidential Information:
A. that was or subsequently becomes publicly available other than by acts of the other party;
B. that was already known to the other party prior to it being provided;
C. that was received by the other party from a third party without an obligation of confidence of any kind; and
D. to the extent required by applicable law or by order of a court or other governmental authority of competent jurisdiction.
5.3. Upon the termination of this Agreement each party shall return to the other party all Confidential Information which is then in its possession or control, and shall remove all digital representations and electronic manifestations of same in any form from all storage media in its possession or under its control.
5.4. SeisWare International will not sell or rent your Confidential Information to anyone unless you expressly consent to disclosure of Confidential Information to third parties. We may send Confidential Information about you to third parties when we:
A. have your consent to share the Confidential Information; or
B. find that your actions on our website violate this Agreement; or
C. respond to subpoenas, court orders or legal processes which require us to disclose registration data or any information about you to law enforcement or other government officials as SeisWare International, in its sole discretion, believes necessary and appropriate.
6. AVAILABILITY OF SERVICE
6.1. The Service you select may not be available at all times, and may not be available in the format generally marketed. Some computer systems and networks may not be available to receive the Service even if initial testing showed that your connection was qualified or your computer environment was suitable. All Service is provided on an “As Is” or “As Available” basis and immediate access and availability of Service are not guaranteed.
6.2. SeisWare International or its Third Party Providers may, at any time, without notice or liability, restrict the use of the Service or limit the time of availability in order to perform any Service.
7.1. This Agreement goes into effect upon your acceptance of this Agreement as set forth in Section 1 and shall continue, subject to the terms of Section 1, until terminated by either party as permitted by this Agreement.
7.2. SeisWare International may terminate or suspend Service, at its sole discretion, immediately and without notice, if:
A. you are in breach of any of the terms of this Agreement (including but not limited to all policies regarding abuse and acceptable use of the Service or Software);
B. any attempt is made, other than by SeisWare International or its Third Party Providers to remove any defects or deal with any errors in the Software;
C. Any development, enhancement or variation of the Software is carried out other than by the Software supplier, SeisWare International or its Third Party Providers;
D. your use of the Service is prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Service or SeisWare International’s network;
E. SeisWare International receives an order from a court to terminate your Service;
F. SeisWare International for any reason ceases to offer the Service;
G. you are no longer a Customer;
H. you have failed to pay an invoice in accordance with the provisions of this Agreement; or
I. where, in the reasonable opinion of SeisWare International, the Customer’s computer system or network have ceased to be capable of operating the Software successfully for any reason.
7.3. The Customer may terminate this Agreement if SeisWare International is in material or continuing breach of any of its obligations under this Agreement and fails to remedy the same (if capable of remedy) for a period of ten days after written notification of the breach has been delivered by the Customer to SeisWare International.
8. LIMITATIONS ON USE OF THE SERVICE
8.1. You agree that your use of the Software and the Internet, without limitation, is your sole responsibility, is solely at your own risk, and is subject to all applicable municipal, provincial, national and international laws and regulations.
8.2. You agree that the Internet is not owned, operated or managed by, or in any way affiliated with SeisWare International and SeisWare International is not responsible and has no control over the information or materials accessible via the Internet through use of the Service. You further agree that SeisWare International does not own or control any of the facilities and communication lines through which Service may be provided, nor does SeisWare International guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned, leased or controlled by SeisWare International.
8.3. You agree that SeisWare International cannot and does not guarantee or warrant that data available for downloading through the Service will be free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of information or data input and output and for maintaining a means external to the Service for the reconstruction and input of any lost data.
8.4. You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. SeisWare International is not responsible for invalid destinations, transmission errors, or corruption or security of your information or data.
8.5. You agree to ensure that the licences authorizing your use of the Software are in effect throughout the term of this Agreement, and that the Software is used only as permitted by the terms of the applicable licences.
8.6. If SeisWare International or its Third Party Provider’s ability to render Service is impaired by you or circumstances beyond the control of SeisWare International or its Third Party Provider, SeisWare International and its Third Party Provider may choose not to provide Service.
9. WARRANTIES AND LIMITATION OF LIABILITY
9.1. You acknowledge and agree that the Service supplied is provided on an “As Is” or “As Available” basis, with all faults. Except as otherwise specifically set forth in this Agreement and as otherwise specifically set forth in any manufacturer warranty for any equipment or software provided by SeisWare International (but only if such warranty is included with such equipment or software), SeisWare International and its Third Party Providers, disclaim any and all warranties for the Service, whether express or implied, including but not limited to the implied warranties of merchantability and fitness for a particular purpose, accuracy, non-infringement, non-interference title, compatibility of computer systems, integration, and those arising from the course of dealing, course of trade, or arising under statute. No advice or information given by SeisWare International or its Third Party Providers shall create a warranty. Use of SeisWare International’s Service is at your own risk and is not warranted.
9.2. SeisWare International does not warrant that its Service will perform at a particular speed, bandwidth or data throughput rate, or will be uninterrupted, error-free, secure, or free of viruses, worms, or the like.
9.3. SeisWare International shall not be liable for loss of your data, or if changes in operation, procedures, or Service require modification or alteration of your equipment, render the same obsolete or otherwise affect its performance. SeisWare International makes no warranty regarding any transactions executed using the Service or the Internet. SeisWare International makes no warranty regarding the content and information accessed by using the Service or any links displayed. You expressly assume all risk and responsibility for use of the Service and the Internet generally.
9.4. In no event shall SeisWare International or its Third Party Providers, be liable to you or any other person for any indirect, incidental, exemplary, special or consequential damages of any kind whatsoever, including without limitation, liability with respect to, expenses, costs, revenue, profits, lost savings or earnings, lost or corrupted data, business interruption, failure to recognize expected savings or other liability arising out of, or related to, the Service provided by SeisWare International or its Third Party Providers or from the installation, uninstallation, reinstallation, use of, or inability to use your computer equipment, hardware, peripherals, or the network resulting from the Service provided hereunder, or to the extent of any claims against you by any other party.
9.5. Except as expressly stated in this section and elsewhere in this Agreement, any liability of SeisWare International for breach of this Agreement will not exceed in the aggregate, with respect to any one event or series of connected events, for any expense, damage, loss, injury, or liability, of any kind or nature whatsoever being awarded to the Customer, the total price paid or due to be paid by the Customer under this Agreement to SeisWare International.
9.6. The Customer agrees that it has accepted these terms and conditions in the knowledge that SeisWare International’s liability is limited and that the prices and charges payable have been calculated accordingly. The Customer is advised to make its own insurance arrangements if it desires to limit its exposure to risk or if it requires further or different cover.
10.1. You agree to defend, indemnify and hold harmless SeisWare International from and against all liabilities, costs and expenses, including fees on a solicitor and his own client basis, related to or arising from:
A. any violation of applicable laws, regulations or this Agreement by you (or any party who uses your computer systems to access the Service);
B. the use of the Service or the Internet or the placement or transmission of any message, information, software or other materials on the Internet by you (or any party who uses your account to access the Service);
C. negligent acts, errors, or omissions by you (or any party who uses your computer systems to access the Service);
D. injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of or result from or in connection with this Agreement, except to the extent that such liabilities arise from the active negligence or willful misconduct of SeisWare International; or
E. claims for infringement of any intellectual property rights arising from the use of the Service, Software, or the Internet.
11. CHARGES AND PAYMENT TERMS
11.1. The Customer will be invoiced monthly in advance for the Service charge shown in the attached Schedule A. All Service charges are exclusive of expenses reasonably incurred in the performance of this Agreement by SeisWare International, which will be payable in addition, and these and other charges will be invoiced monthly in arrears. All invoices are payable 30 days from receipt. All charges are exclusive of GST and any applicable taxes, which will be applied in accordance with the prevailing legislation in force.
11.2. Payments which are not received when payable will be considered overdue and remain payable by the Customer together with interest for late payment from the date payable at a rate of 24% per annum. This interest will accrue on a daily basis and be payable on demand.
11.3. Notwithstanding the above provision for late payment, in this event SeisWare International may at its option, and without prejudice to any other remedy at any time after payment has become due, temporarily suspend Service or terminate this Agreement.
11.4. If SeisWare International becomes entitled to terminate this Agreement for any reason, any sums then due to SeisWare International will immediately become payable in full.
12. EMPLOYMENT RESTRICTION
While this Agreement is in force and for a period of 12 months from its termination for any reason, the Customer will not actively solicit or canvas the employment of any person employed or consultant acting on behalf of SeisWare International who was assigned to work on the Customer’s system over a period of one month or more in the preceding 12 months. If the Customer is in breach of this condition, the Customer, recognizing that SeisWare International will suffer substantial damage, will pay to SeisWare International by way of liquidated damages and not by way of penalty a sum equal to the gross annual salary or the contractor fees, whichever is applicable, paid to that person by SeisWare International in the immediately preceding 12 months.
13. GENERAL PROVISIONS
13.1. All obligations of the parties under this Agreement, which, by their nature, would continue beyond the termination, cancellation or expiration of this Agreement, including by way of illustration and not limitation, those sections relating to Warranties and Limitation of Liability and Indemnification, shall survive such termination, cancellation or expiration.
13.2. SeisWare International will not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, or other things we do not control, or an inability to obtain necessary equipment or Service. In the event of a force majeure, SeisWare International shall use commercially reasonable efforts to remedy the situation and remove the cause of its inability to perform this Agreement as is reasonably possible.
13.3. You agree not to assign or otherwise transfer, this Agreement in whole or in part, including the Software or your rights or obligations under it. Any attempt to do so shall be void. We may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed. This Agreement shall be binding on SeisWare International’s successors or assigns.
13.4. You and SeisWare International agree that the substantive laws of the province of Alberta, without reference to its principles of conflicts of laws, will be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. Except as otherwise required by law, including the laws of the province of Alberta relating to consumer transactions, any cause of action or claim you may have with respect to the Service must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred.
13.5. Use, duplication or disclosure by any Government entity is subject to restrictions set forth, as applicable.
13.6. In the event that any portion of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances, other than those to which it is invalid or unenforceable, shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.
13.7. SeisWare International’s failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.
13.8. This Agreement, including all attachments and all other policies posted on SeisWare International’s Website, which are fully incorporated into this Agreement either by attachment or by reference, constitutes the entire agreement between you and SeisWare International with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgments or other documents, written or electronic, are void, unless the changes are made in writing and executed by the parties.
13.9. This Agreement may be executed in one or more counterparts, including by facsimile transmission, each of which when executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement.