1. SERVICES. DigitalGlobe Solutions Inc. (“DigitalGlobe”) offers SeaStar Sport Web Service to subscribers (each, a “Subscriber”) on a nonexclusive basis to provide an oceanographic satellite data information service (the “Service” or “SeaStar Sport Web Service”). Subscriber desires to use the Services. These terms and conditions if accepted by Subscriber identifies the Services to be purchased by Subscriber and sets forth the terms and conditions upon which DigitalGlobe will provide the Services and Subscriber will use the Services it purchases.
2. NOTICE. DigitalGlobe hereby makes available access to the Services and oceanographic satellite and online tools data (collectively, the “DigitalGlobe Data”) to you only on the condition that you accept all of the terms and conditions contained in this agreement (the “Agreement”). By using the Services and any of the DigitalGlobe Data made accessible to you in any format, you agree to be bound by the terms and conditions of this Agreement. If you do not agree to these terms and conditions, DigitalGlobe will not Agreement the Services and DigitalGlobe Data to you and you should not use the Service and DigitalGlobe Data. In such case you should not subscribe to the Service.
3. FEES. Subscriber shall pay the fees for the Services specified at the SeaStar Sport Fishing Web Services information portal: http://www.seastarsport.com/brochure/product/pricing/ .
4. TERM. The Agreement will remain in full force and effect while you use the Service and/or remain a member of SSFWS. The term of the Agreement will begin when you enroll to use the Services or become an SSFWS member at the SeaStar Sport Fishing Web Services information portal: http://www.seastarsport.com/brochure/product/pricing. At that time the Service will be activated. The Service will end 365 days after Services activation, unless renewed by you or this Agreement is terminated earlier in accordance with Section 6. If you terminate your subscription to the Service or the Service is terminated in accordance with Section 6 of this Agreement, you will not be refunded for the unused remainder of your subscribed term for the Service.
(a) Subscriber shall purchase an annual subscription to the Services using a credit card via the E-Commerce online payment system associated with the Services. Subscriber shall pay the annual fees for the Services in advance. Subscriber shall be obligated and liable to pay DigitalGlobe the fees for the Services whether or not Subscriber fully exercises its right to use the Services during the subscription term. If DigitalGlobe does not receive a payment in full when due, DigitalGlobe may charge interest on the amount of the late payment at the lesser of 1.5% per month or the maximum amount permitted under applicable law
(b) DigitalGlobe’s fees for Services do not include any taxes, charges, levies, duties, withholding, usage, or other fees which may be asserted against a party by any local, state, or national governmental authority with respect to or arising out of these Terms and Conditions (collectively, “Taxes”). Except for U.S. federal income and U.S. state income (or equivalent) taxes imposed on DigitalGlobe with respect to its income from these Terms and Conditions, Subscriber will be responsible for all Taxes. Where required or if DigitalGlobe determines appropriate, DigitalGlobe may invoice Subscriber for Taxes DigitalGlobe believes are due in connection with the Services and, provided DigitalGlobe remits such amounts to the applicable authority, DigitalGlobe shall have no liability for such Taxes. The foregoing sentence imposes no obligation on DigitalGlobe to make any filing or take any action that is the responsibility of Subscriber under applicable law. In the event that Subscriber has not complied with a tax withholding, filing, or payment obligation in connection with these Terms and Conditions, DigitalGlobe may take any action that in its discretion is necessary to preserve its rights under these Terms and Conditions, including actions with respect to Taxes, and Subscriber shall cooperate with DigitalGlobe in connection with such actions.
(c) All of Subscriber’s payments under these Terms and Conditions will be made free and clear of any applicable withholding, income, or any other Taxes or charges whatsoever. To the extent Subscriber is required to withhold Taxes or other charges from such payment, the amount of such payment will be increased so that the net amount paid equals the amount that would otherwise be payable had such Taxes or charges not been required to be withheld. Subscriber will provide to DigitalGlobe copies of such documentation as is necessary to establish the amount of Taxes or other charges withheld in connection with such payment and the corresponding adjustment made by Subscriber
6. TERMINATION. Your right to use the Service and DigitalGlobe Data and DigitalGlobe’s obligation to provide the Services and DigitalGlobe Data will automatically terminate if you fail to comply with any provision of this Agreement. If DigitalGlobe terminates your Service for failure to comply with any provision of this Agreement, you will NOT be entitled to any refund of any fees paid for the Services, including, without limitation, any fees paid for the unused term of your subscribed term. All provisions relating to proprietary rights and transfer prohibitions shall survive the termination of this Agreement.
7. ACCEPTANCE OF SERVICES. The Services shall be deemed accepted by Subscriber upon DigitalGlobe’s activation of the Services. DigitalGlobe Data delivered to Subscriber by DigitalGlobe via the Services shall be deemed accepted by Subscriber as soon as DigitalGlobe makes such DigitalGlobe Data available to Subscriber via the Services.
8. CONSENT TO USE OF SUBSCRIBER INFORMATION. By Subscriber’s acceptance of the Services, Subscriber also consents to DigitalGlobe collecting certain information about Subscriber and its behavior with respect to accessing, selecting and use of the Services and DigitalGlobe Data. Subscriber further consents to DigitalGlobe (a) combining such Subscriber information with other subscriber information pertaining to the Services provided all identifiers that would enable a person to associate such information directly with the actual subscriber are removed (“Aggregated Information”) and (b) using the Aggregated Information for internal business purposes or disclosing the Aggregated Information publicly or to third parties.
9. OWNERSHIP. The Services are exclusively owned by DigitalGlobe and are protected by United States and international laws, treaties, and conventions regarding intellectual property and proprietary rights inclusive of trade secrets. DigitalGlobe and its licensors retain all rights, title, and ownership of the Services Agreement licensed under this Agreement and Subscriber shall have no ownership rights to the Services other than Subscriber’s right to use the Services in accordance with this Agreement. All DigitalGlobe Data accessible as part of the Services is exclusively owned by DigitalGlobe and/or its licensors. From the date of receipt, Subscriber agrees to use reasonable efforts to protect the DigitalGlobe Data and Services from unauthorized use, reproduction, distribution, or publication. All rights in any DigitalGlobe and licensor intellectual property (including any applicable copyright, patent, or trade secret) not specifically granted by this Agreement are reserved to DigitalGlobe and its licensors.
10. DigitalGlobe SERVICE LEVEL COMMITMENTS
(a) DigitalGlobe will use commercially reasonable efforts to make the Services available twenty-four (24) hours a day, seven (7) days a week exclusive of scheduled maintenance and downtime.
(b) DigitalGlobe will provide Subscriber with basic Help Desk support at no additional charge daily from 8:00 a.m. to 10:00 p.m. EST. Subscriber may contact the Help Desk by email via the “Help Desk” link on the SSFWS Portal. The Help Desk responds to general service user questions and system functionality or products issues. Subscriber should direct questions or comments to the SeaStar Sport Customer Service department at +1.703.480.7538 or firstname.lastname@example.org.
(c) Subscriber’s sole and exclusive remedy for any failure relating to the availability of the SeaStar Sport Fishing Web Services (a “Service Level Failure”) under these Terms and Conditions or otherwise is set forth here: http://www.seastarsport.com/brochure/support/. The unavailability of any DigitalGlobe Data supplied to DigitalGlobe by a third party and made available via the SeaStar Sport Fishing Web Services shall not constitute a Service Level Failure under this Agreement.
11. FORCE MAJEURE. Except for performance of a payment obligation, neither party will be liable to the other by reason of any failure in performance of this Agreement if the failure arises out of acts of God, acts of the other party, acts of governmental authority, fires, strikes, delays in transportation, riots, terrorism, war, satellite failure, or any causes beyond the reasonable control of that party.
12. AGREEMENT NOT TO COPY OR DISTRIBUTE. SUBSCRIBER SHALL NOT COPY, DISCLOSE, SELL, OR OTHERWISE DISTRIBUTE IN ANY MANNER THE SERVICES, DigitalGlobe DATA OR INFORMATION AVAILABLE ON THE SSFWS WEBSITE. SUBSCRIBER SHALL ADOPT PROCEDURES NECESSARY TO ENFORCE THIS REQUIREMENT. IN ADDITION, SUBSCRIBER AGREES TO PROMPTLY NOTIFY DigitalGlobe OF ANY UNAUTHORIZED DISTRIBUTION OR USE OF THE SERVICES, DigitalGlobe DATA OR OTHER INFORMATION ON THE SSFWS WEBSITE OF WHICH IT BECOMES AWARE. SUBSCRIBER MAY NOT REVERSE ENGINEER, DECOMPILE, TRANSLATE, ADAPT, OR DISASSEMBLE THE SERVICES OR SSFWS WEBSITE. SUBSCRIBER REPRESENTS AND WARRANTS THAT IT WILL COMPLY WITH ALL U.S. AND NON-U.S. LAWS, RULES AND REGULATIONS WHICH APPLY TO THE USE OF THE SERVICES. SUBSCRIBER WILL NOT SHARE HIS USERNAME AND PASSWORD AND ACCEPTS THAT DigitalGlobe MAY USE DIGITAL METHODS OF VERIFICATION. UNAUTHORIZED SHARING OF USERNAME AND PASSWORD WILL RESULT IN IMMEDIATE TERMINATION OF SERVICE WITHOUT REFUND.
13. LIMITED WARRANTIES AND DISCLAIMERS; LIMITATION OF LIABILITY
(a) Limited Warranties and Disclaimers. DigitalGlobe represents and warrants that, except as has been disclosed to Subscriber: (i) to the best of its knowledge DigitalGlobe has the right to grant all the licenses granted under this Agreement; and (ii) DigitalGlobe has not received notice that any of the Services or the use of any of the Services infringe upon any third party intellectual property or violate the terms of any license agreement or other agreement.
(b) DigitalGlobe Data has been obtained from sources believed to be reliable, but its accuracy, completeness, timeliness, and usefulness are not guaranteed. DigitalGlobe Data may contain some nonconformities, defects, errors, or omissions. DigitalGlobe MAKES NO WARRANTY WITH RESPECT TO any SERVICES AND DigitalGlobe DATA OTHER THAN AS EXPRESSLY SET FORTH IN SECTION 13(a) ABOVE. Without limiting the generality of the preceding sentence, DigitalGlobe does not warrant that the Service and DigitalGlobe Data will meet the Subscriber’s needs or expectations, the use of the Service and DigitalGlobe Data will be error free or uninterrupted, or that all nonconformities can or will be corrected. DigitalGlobe is not inviting reliance on the Service and DigitalGlobe Data, and Subscriber should always verify actual DigitalGlobe Data including but not limited to map, spatial, raster, vector, tabular, ontologic, and rules data.
The Services are not fault-tolerant and are not designed, manufactured, or intended for use or resale for insurance underwriting or for critical health and safety or online control equipment in hazardous environments that require fail-safe performance, such as in the operation of nuclear facilities, aircraft or marine navigation, or communication systems, air traffic control, emergency response, terrorism prevention or response, life support, or weapons systems (“High Risk Activities”). DigitalGlobe SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR HIGH RISK ACTIVITIES.
THE SERVICES AND DigitalGlobe DATA DOES NOT CONSTITUTE ADVICE NOR IS IT TO BE USED AS A SUBSTITUTE FOR SPECIFIC ADVICE FROM A COMPETENT PROFESSIONAL. SUBSCRIBER SHOULD NOT ACT (OR REFRAIN FROM ACTING) BASED UPON THE SERVICES AND DigitalGlobe DATA WITHOUT INDEPENDENTLY VERIFYING THE SERVICES AND DigitalGlobe DATA AND, AS NECESSARY, OBTAINING PROFESSIONAL ADVICE REGARDING SUBSCRIBER’S PARTICULAR FACTS AND CIRCUMSTANCES. THIRD PARTIES ARE NOT ENTITLED TO RELY ON THE SERVICES AND DigitalGlobe DATA FOR ANY PURPOSE WITHOUT DigitalGlobe’S PRIOR WRITTEN CONSENT.
EXCEPT FOR THE ABOVE EXPRESS LIMITED WARRANTIES, DigitalGlobe DISCLAIMS ALL OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINTERFERENCE, AND NON-INFRINGEMENT. DigitalGlobe DOES NOT WARRANT THAT THE SERVICES WILL MEET CUSTOMER’S NEEDS OR THAT ALL NONCONFORMITIES CAN OR WILL BE CORRECTED.
(c) LIMITATION OF LIABILITY. Neither DigitalGlobe nor any of its AFFILIATES, subcontractors, or suppliers will be liable to SUBSCRIBER For lost revenues, lost profits, lost data, or other special, incidental, indirect, or consequential damage or for loss, damage, or expense directly or indirectly arising from the SUBSCRIBER’s or any other PERSON’S use of or inability to use THE SERVICES or for commercial loss of any kind, whether or not DigitalGlobe has been advised Of the possibility of such damage or loss, nor shall any recovery against DigitalGlobe, whether in contract or tort (including negligence, strict liability, or otherwise) be greater in amount than the Fees ACTUALLY paid by SUBSCRIBER to DigitalGlobe FOR THE SERVICES DURING THE PRIOR TWELVE (12) MONTH PERIOD.
(d) Applicability of Disclaimers and Limitations . Subscriber agrees that the limitations of liability and disclaimers set forth in this Agreement will apply regardless of whether the Subscriber has accepted the Services delivered by DigitalGlobe. Subscriber agrees that DigitalGlobe has set the fees for the Services and entered into these Terms and Conditions in reliance upon the disclaimers and limitations set forth herein, that the same reflect an allocation of risk between Subscriber and DigitalGlobe (including the risk that a contract remedy may fail of its essential purpose and cause consequential loss), and that the same form an essential basis of the bargain between Subscriber and DigitalGlobe.
14. EXPORT CONTROLS; COMPLIANCE WITH LAWS. You agree that you will not directly or indirectly transfer the Services or DigitalGlobe Data to any country or individual to which such transfer would be prohibited by the International Traffic in Arms Regulations, the U.S. Export Administration Act and the regulations issued thereunder or by U.S. statutory economic sanctions programs. You must comply with all applicable foreign, federal, state and local laws with respect to your use of the Services and DigitalGlobe Data
15. INDEMNIFICATION. You agree to indemnify and hold DigitalGlobe, and our officers, directors, suppliers, subsidiaries, affiliates, agents, co-branders or other partners, suppliers, and employees, harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party related to or arising out of your use of the Services or related to or arising out of any transactions or interactions with third parties, content you submit, post to or transmit on or through the Services, your connection to the Services, your violation of this Agreement, or your violation of any rights of another.
16. GOVERNING LAW. This Agreement shall be construed and governed by the laws of the Commonwealth of Virginia, USA without giving effect to the conflict of law rules thereof. Any action to enforce the terms of this Agreement shall be brought in the courts of the Commonwealth of Virginia.
17. VARIATIONS AND AMENDMENTS. DigitalGlobe reserves the right to add, change, substitute, discontinue, remove, or cancel any particular content, features, promotions, and/or functionality offered through the Services at any time or to discontinue the Services (or any part thereof) at any time. DigitalGlobe shall not be liable to you in damages or otherwise for any such changes except for the refund of any fees paid for Services not yet delivered. DigitalGlobe may amend this Agreement And Subscriber may accept the amended terms by continuing to use the Services, or may reject the amended terms without incurring any cancellation fees or other penalties by sending written notice to DigitalGlobe and ceasing use of the Services upon the effective date of the amended Agreement.
18. COUNTERPARTS. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original, and all of which together shall constitute one and the same document.
19. ENTIRE AGREEMENT. These Terms and Conditions between you and DigitalGlobe pursuant to which the Services are provided, is the entire agreement between us relating to the Services, and supersedes any prior oral or written purchase order, communications, advertising or representations concerning the Services. No change or modification of this Agreement will be valid unless it is in writing and signed or authenticated by both you and DigitalGlobe. If any provision of this Agreement is held to be unenforceable, then such provision shall be stricken from this Agreement and the remaining provisions shall be enforced in accordance with their terms. No failure or delay by DigitalGlobe in enforcing any right or remedy under this Agreement shall be construed as a waiver of any future or other exercise of such right or remedy by DigitalGlobe
21. ENFORCEABILITY. By clicking the “I Accept” button when subscribing to the Services you agree that these Terms and Conditions are legally binding on you and enforceable as a contract between you and DigitalGlobe.
SERVICE LEVEL CREDIT
a) If within a calendar year, exclusive of scheduled maintenance and downtime, SeaStarSport Web Services are available 98% of the time or more, no service credit will apply.
b) If within a calendar year, exclusive of scheduled maintenance and downtime, SeaStarSport Web Services are available 95% or more but less than 98% of the time, in the following calendar year Customer will receive a credit of one point five (1.5) times the period of time for which the service was unavailable. This credit will be a minimum of one day and will be rounded up to the nearest whole number of days. Customer may use the credit to extend the term of his or her subscription agreement by the whole number of days equal to the credit.
c) If within a calendar year, exclusive of scheduled maintenance and downtime, SeaStar Sport Web Services are available less than 95% of the time, in the following calendar year Customer will receive a credit of two (2) times the period of time for which the service was unavailable. This credit will be a minimum of one day and will be rounded up to the nearest whole number of days. Customer may use the credit to extend the term of his or her subscription agreement by the whole number of days equal to the credit.
d) If within a calendar year, exclusive of scheduled maintenance and downtime, SeaStarSport Web Services are available less than 90% of the time, Customer may terminate his or her subscription agreement and request a credit of 100% of the prorated fee for the remaining time of the subscription period.
e) The unavailability of any DigitalGlobe Data supplied to DigitalGlobe by a third party and made available via the SeaStarSport Web Services shall not constitute a Service Level Failure under this Agreement.