These Terms and Conditions (these “Terms”) govern each Order Form executed by Customer and Martineau.
Capitalized terms not defined in these Terms have the meaning given in the applicable Order Form. In the event of
any inconsistency between these Terms and any Order Form, the terms of the Order Form shall govern.
1. DEFINITIONS
1.1. “Customer Authorized User” means any employee or contractor authorized by Customer to access or use the Services solely on behalf of Customer.
1.2. “Equipment” means tanks, cameras, cabling, and other physical items provided by Martineau pursuant to an Order Form.
1.3. “Intellectual Property Rights” means trade secret rights, rights in know-how, moral rights, copyrights, patents, trademarks (and the goodwill represented thereby), and similar rights of any type under the Laws of any governmental authority, domestic or foreign, including all applications for and registrations of any of the foregoing.
1.4. “Laws” means any federal, state, provincial, county, municipal or other local laws, rules, regulations, ordinances, or judicial decisions enacted or issued by a court or other governmental authority of any country, state, province, county, city or other municipality.
1.5. “Reporting” means all Services Data reported to Customer through the Services.
1.6. “Services” means Martineau’s WatchYourFish subscription services as made available to Customer and as set forth in the applicable Order Form.
1.7. “Services Data” means all data, analytics, imaging, or other information obtained by Martineau through the Services.
1.8. “Term” has the meaning given in Section 5.1.
1.9. “Usage Requirements” means Martineau’s requirements for accessing and using the Services, as applicable, as such usage requirements may be specified by Martineau (including via email or electronic notification) from time to time in advance.
2. SERVICES
2.1. Provision of Services. During the Term and subject to the terms and conditions of this Agreement, Customer and any Customer Authorized User may access and use, and Martineau agrees to make available, the Services, including any related software as made available by Martineau, at the Customer Locations for Customer’s research purposes, solely as contemplated by these Terms and in accordance with the Usage Requirements. Subject to Customer’s payment of all applicable Maintenance Fees as described in the Order Form, Martineau shall provide support as described in the Support Services description located at https://www.martineau.com/canarytank/supportservices.
2.2. License to Reporting. Subject to the terms and conditions of this Agreement (including payment of all applicable fees), Martineau grants to Customer a perpetual, worldwide right and license to use, copy, display, modify, prepare derivative works of, and otherwise exploit the Reporting provided by Martineau through the Services. Subject to Section 7.2, Reporting shall be treated as Customer’s Confidential Information (as defined below).
2.3. Restrictions. Except as expressly set forth in this Agreement, Customer agrees not to (a) interfere with or disrupt the Services or attempt to gain access to any systems or networks that connect to the Services (except as required to access and use the Services, and then only in accordance with Martineau’s Usage Requirements) (b) use or authorize use of the Services, any Services Data obtained via the Services, or any Martineau Confidential Information for any unauthorized purpose, including, without limitation, for the purpose of offering services to third parties that are competitive to the Services; (c) copy, transfer, sell, lease, syndicate, sub-syndicate, lend, or use for co-branding, timesharing, service bureau, arbitrage or other unauthorized purposes the Services, any related software, or access thereto or information obtained therefrom; (d) modify, prepare derivative works of, translate, reverse engineer, reverse compile, disassemble any of the Services, any related software, or any portion thereof; or (e) attempt to do any of the foregoing.
2.4. Ownership; No Implied Licenses. Customer acknowledges that, as between the parties, Martineau owns all right, title, and interest in and to the Services and, subject to Section 7.2, Services Data. Except to the extent set forth herein, (a) neither party grants to the other party any license, express or implied, to the other party’s Intellectual Property Rights and (b) nothing in this Agreement or the performance thereof, or that might otherwise be implied by Law, will operate to grant either party any right, title or interest, implied or otherwise, in or to the Intellectual Property Rights of the other party. Each party, on behalf of itself and its licensors, expressly reserves all Intellectual Property Rights not expressly granted hereunder.
2.5. Professional Services. If Customer requires professional services, (the “Professional Services”) one or more written statements of the work will be executed by each of the parties (each, a “Statement of Work” or “SOW”). Customer will pay all applicable fees and expenses for Professional Services as set forth in each SOW. Professional Services shall be performed by Martineau or third-party contractors; provided that, Martineau shall be fully responsible for the performance of its contractors under this Agreement. Company will cooperate reasonably and in good faith with Martineau in the performance of the Professional Services. Such cooperation may include access to or the provision of resources reasonably necessary for satisfactory and timely performance of the Professional Services (which may include, for example, workspace, telephone and other facilities, suitably configured computer equipment with Internet access, reasonably complete and accurate information and data from Customer’s employees, agents, coordination of onsite, online, and telephonic meetings, and the like).
3. EQUIPMENT
3.1. Sale and Delivery. Customer is purchasing and acquiring the title to and ownership of the Equipment, which includes hardware and physical infrastructure, at the quantities and prices itemized in the Order Form. Company shall deliver the Equipment to the delivery address specified by Customer. Delivery to such specified shipping address shall constitute delivery to Customer. Company shall not be liable for any failure to deliver if the failure is caused by circumstances beyond the reasonable control of Company (or its agent or carrier) (including but not limited to an inaccurate address provided by Customer, or a missed delivery window caused by Customer).
3.2. Inspection Rights. Within ten days following the Go Live Date, Customer shall have the right to examine the Equipment. Company shall promptly replace, at its own expense, any damaged or defective Equipment discovered as a result of such inspection.
4. CUSTOMER DUTIES & RESPONSIBILITIES
4.1. Access to Services. Customer shall comply with all Usage Requirements. Customer is responsible for acquiring and maintaining, at its sole cost and expense, all utilities, telecommunications, Internet services, and other hardware and software required to operate the Equipment and access and use the Services.
4.2. Use of Account. As between the parties, Customer shall be solely responsible for any use of the Services under its account, whether authorized by Customer or not.
5. TERM, TERMINATION AND SUSPENSION
5.1. Term. Unless terminated earlier or extended in accordance with this Section 5, the Services shall be provided pursuant to this Agreement and any applicable Order Form during the Initial Term. This Agreement shall automatically renew for successive one-year periods (each, a “ Renewal Term ” ) unless either party gives written notice to the other party of its intention not to renew at least 90 days prior the expiration of the then-current Term. “ Term ” means the Initial Term and any Renewal Terms.
5.2. Termination for Material Breach. Either party may terminate this Agreement if the other party breaches any material term of this Agreement and fails to cure that breach within 30 days after notice thereof from the non-breaching party.
5.3. Termination for Insolvency. Either may terminate this Agreement upon written notice to the other party if such other party is declared insolvent or bankrupt, its property is assigned for the benefit of creditors, levied upon under execution, or seized by virtue of any writ of any court of law, a petition for declaration of bankruptcy or reorganization is filed against it in any court and not dismissed within 90 days, or a trustee or receiver is appointed for it.
5.4. Effect of Termination. Upon termination or expiration of this Agreement, Martineau will cease providing the Services. Sections 1, 2.3, 2.4, 6, 7.1, 8, 9, 10, 11 and this Section 5.4 will survive any termination or expiration of this Agreement. Any non-disputed payment obligations as of the termination or expiration this Agreement (or that relate to activity during the Term) shall remain in effect.
5.5. Suspension Rights. Martineau may suspend Customer’s use of the Services, in its sole good faith discretion, in the event that Martineau reasonably believes that Customer or anyone using the Services through Customer’s account is engaged in (a) any activity that may harm the Services or Martineau’s ability to operate and maintain the Services; or (b) any fraudulent or illegal activity or any activity that could reasonably be expected to result in legal liability to Martineau. Martineau will use reasonable efforts to the extent practicable under the circumstances to provide prior notice of such suspension. Any such suspension may continue until the event causing such suspension has been cured or until Martineau has received satisfactory assurances that such event will not recur.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS; DISCLAIMER
6.1. Mutual Warranty. Each party hereto represents, warrants, and covenants to the other party that it has the full right, power and authority to enter into this Agreement on behalf of itself and to undertake to perform the acts required of it hereunder.
6.2. Martineau Warranties. Martineau represents, warrants, and covenants to Customer that (a) the Services will be free from material defects and conform in all material respects to all documentation provided or made available by Martineau to Customer; (b) the Services do not violate, infringe or misappropriate any patent, copyright, trade secret or trademark, or the privacy rights of any third party; (c) it shall comply with all applicable laws and regulations; and (d) Martineau will not introduce or knowingly transmit any virus, malware, or other harmful code.
6.3. Customer Warranties. Customer represents, warrants, and covenants to Martineau that (a) entering into this Agreement and performing its binding obligations and duties as set forth hereunder, does not and will not violate any agreement to which it is a party or by which it is otherwise bound; (b) Customer will not introduce or knowingly transmit any virus, malware, or other harmful code; and (c) Customer’s research and its use of the Services will comply with all applicable Laws.
6.4. DISCLAIMER. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE EQUIPMENT, SERVICES, AND SERVICES DATA ARE MADE AVAILABLE TO CUSTOMER “AS IS” AND MARTINEAU EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS AND WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT, OR IMPLIED WARRANTIES ARISING FROM COURSE OF DEALING OR COURSE OF PERFORMANCE. WITHOUT LIMITATION OF THE FOREGOING, MARTINEAU WILL NOT HAVE LIABILITY FOR ANY: (A) ERRORS, MISTAKES, OR INACCURACIES OF ANY INFORMATION OR DATA; (B) ANY UNAUTHORIZED ACCESS TO OR USE OF THE SERVICES; (C) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SERVICES; (D) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SERVICES BY ANY THIRD PARTY; OR (E) ANY LOSS OR DAMAGE OF ANY KIND RESULTING FROM ANY INFORMATION OR DATA OBTAINED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE ON OR THROUGH THE SERVICES.
7. SECURITY; DATA RIGHTS
7.1. Security. Martineau will implement and maintain technical and organizational measures appropriate to the nature of the data provided by Customer and generated as a result of Customer’s use of the Services and will use commercially reasonable efforts to protect such data from unauthorized access, accidental or unlawful destruction, misuse, alteration or disclosure. Each party will use commercially reasonable efforts to notify the other party in the event that third parties gain unauthorized access to such data.
7.2. Data Rights. Martineau may use and disclose Services Data (including Reporting) (a) as part of Martineau’s business operations, on an aggregate, anonymous basis such that any use or disclosure does not permit a third party to associate any particular data with Customer and (b) if required by court order, Law, or governmental agency. In addition, Martineau may use Services Data for Martineau’s internal purposes, including to operate, manage, maintain, and improve Martineau’s products and services.
7.3. Data Protection Laws. The parties acknowledge and agree that they will abide by all applicable laws and regulations applicable to Martineau and/or Customer, including, if applicable, the laws and regulations of the European Union, applicable to the processing of personal data under this Agreement, the (UK) Data Protection Act 1998 and the Personal Information Protection and Electronic Documents Act of Canada and the California Consumer Privacy Act. Each party shall bear responsibility and liability for any and all losses arising from or relating to such party’s non-compliance with the above laws and regulations.
8. CONFIDENTIALITY
Each party (a “ Receiving Party”) understands that the other party (the “Disclosing Party”) may disclose information of a confidential nature including, without limitation, product information, user manuals, data, pricing, financial information, end user information, user interfaces, software, specifications, research and development and proprietary algorithms or other materials that is (a) clearly and conspicuously marked as “confidential” or with a similar designation or (b) is disclosed in a manner in which the Disclosing Party reasonably communicated, or the Receiving Party should reasonably have understood under the circumstances, that the disclosure should be treated as confidential, whether or not the specific designation “confidential” or any similar designation is used (“Confidential Information”). The terms and conditions of this Agreement also constitute the Confidential Information of each party. The Receiving Party agrees, for itself and its agents and employees, that it will not publish, disclose, or otherwise divulge or use for its own purposes any Confidential Information of the Disclosing Party furnished to it by such Disclosing Party without the prior written approval of the Disclosing Party in each instance. Receiving Party will use at least the same level of care to maintain the Confidential Information of the Disclosing Party as it uses to maintain the confidentiality of its own non-public information and in no event less than a reasonable degree of care. The foregoing obligations shall not extend to any information to the extent that the Receiving Party can demonstrate that such information (i) was at the time of disclosure or, to the extent that
such information thereafter becomes through no fault of the Receiving Party, a part of the public domain by publication or otherwise; (ii) was already properly and lawfully in the Receiving Party’s possession at the time it was received by the Receiving Party free from any obligation of confidentiality, (iii) was or is lawfully received by the Receiving Party from a third party who was under no obligation of confidentiality to the Disclosing Party with respect thereto, or (iv) is independently developed by the Receiving Party or its independent contractors who did not have access to the Disclosing Party’s Confidential Information. If the Receiving Party is required to disclose Confidential Information in accordance with judicial or governmental order or requirement, the Receiving Party shall promptly notify the Disclosing Party in order to allow such party to contest the order or requirement or seek confidential treatment for such information. Upon termination or expiration of this Agreement, upon the request of a Disclosing Party, the Receiving Party agrees to return to the other party all of such other party’s Confidential Information that is reduced to one or more writing, drawing, schematic, tape, disk, or other form of documentation, or to certify to the Disclosing Party in writing that all such material has been destroyed.
9. INDEMNIFICATION
9.1. By Martineau.
9.1.1. Indemnity. Martineau shall indemnify and hold Customer and its affiliates, and its and their directors, officers, employees, and agents and its and their respective successors, heirs, and assigns (collectively, the “Customer Parties”) harmless from and against any liability, damage, loss, or expense (including reasonable attorneys’ fees and expenses of litigation) (collectively, “Losses”) incurred by them in connection with, and defend each of the Customer Parties against, any third-party claim, action or proceeding (a “Claim”) that (i) the Services as made available to Customer by Martineau infringe any patent, copyright, or trademark, or misappropriate any trade secret; and/or (ii) Martineau’s breach of any of its representations, warranties,
covenants, or obligations under this Agreement.
9.1.2. Right to Ameliorate Damages. In the event that a court of competent jurisdiction determines or in the event that Martineau, in its sole discretion, reasonably determines, that the Services, or any portion thereof, infringes or misappropriates, or may infringe or misappropriate, any third-party intellectual property right, Martineau shall (but without limitation of Martineau ’s obligations under Section 9.1.1), at Martineau’s sole discretion, either: (a) obtain a license, at reasonable cost, for Customer to continue using the Services, or portion thereof; (b) modify the Services while retaining substantively equivalent functionality; (c)
replace the affected Services with functionally equivalent software or services; or (d) terminate this Agreement in whole or in part (in which event, Customer shall immediately terminate use of such Services).
9.2. By Customer. Customer shall indemnify, defend, and hold harmless Martineau, its affiliates and its and their directors, officers, employees, and agents and its and their respective successors, heirs, and assigns (collectively, the “ Martineau Parties”) from and against any Losses incurred by them in connection with, and defend each of the Martineau Parties against, any Claim arising from or related to Customer’s breach of any of its representations, warranties, covenants, or obligations under this Agreement.
9.3. Process. A Customer Party or Martineau Party requesting indemnification hereunder (the “Indemnified Party”) will (a) provide the party providing indemnification hereunder (the “Indemnifying Party”) with prompt notice of any such Claim (provided, however, that failure to do so shall not relieve the Indemnifying Party of its indemnification obligations hereunder except to the extent of any material prejudice to the Indemnifying Party as a direct result of such failure); (b) permit the Indemnifying Party to assume and control the defense of such action upon the Indemnifying Party’s written notice to the Indemnified Party of its intention to indemnify; and (c) upon the Indemnifying Party’s written request, provide to the Indemnifying Party all available information and
assistance reasonably necessary for the Indemnifying Party to defend such Claim. The Indemnified Party shall have the right, at its sole cost and expense, to participate in the defense and settlement of any such Claim with counsel of its choice. Notwithstanding the foregoing, Martineau shall have no obligation to indemnify Customer to the extent that any Claim arises from (i) Customer’s use of the Services in contravention of this Agreement or any applicable documentation; or (ii) the combination or use of the Services with any other services, technology, content, or materials that were not provided by Martineau or specified by Martineau for use with the Services.
10. LIMITATIONS OF LIABILITY
10.1. NO CONSEQUENTIAL DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING AS A RESULT OF ANY DELAY IN RENDERING SERVICE, LOSS OF DATA, LOSS OF USE OR THE INDIRECT LOSS OF PROFIT OR REVENUE) ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, HOWEVER CAUSED, AND UNDER WHATEVER CAUSE OF ACTION OR THEORY OF LIABILITY BROUGHT (INCLUDING UNDER ANY CONTRACT, NEGLIGENCE OR OTHER TORT THEORY OF LIABILITY) EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10.2. LIABILITY CAP. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY’S LIABILITY FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (WHEN AGGREGATED WITH ITS LIABILITY FOR ALL OTHER CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT) EXCEED THE GREATER OF (A) $5,000.00 AND (B) THE AMOUNTS PAID OR PAYABLE BY CUSTOMER TO MARTINEAU DURING THE TWELVE-MONTH PERIOD IMMEDIATELY PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY.
10.3. EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS OF LIABILITY IN THIS SECTION 10 SHALL NOT APPLY TO (A) A BREACH BY A PARTY OF ITS CONFIDENTIALITY OBLIGATIONS UNDER THIS AGREEMENT; (B) A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT (OR ANY AMOUNTS PAID OR PAYABLE IN CONNECTION WITH SUCH OBLIGATIONS); OR (C) CUSTOMER’S BREACH OF SECTION 2.2.
11. GENERAL
11.1. Independent Contractors. It is the intention of Martineau and Customer that Martineau and Customer are, and will be deemed to be, independent contractors with respect to the subject matter of this Agreement, and nothing contained in this Agreement will be deemed or construed in any manner whatsoever as creating any partnership, joint venture, employment, agency, fiduciary or other similar relationship between Martineau and Customer.
11.2. Use of Customer Name; Publicity. Martineau may list Customer’s name and logo during the Term on Martineau’s website and in Martineau’s promotional materials. Except as provided in the previous sentence, neither party shall issue any press release or make any public statement about the relationship contemplated by this Agreement or the term and conditions of the Agreement, without the prior written consent of the other party.
11.3. Notice. All notices under this Agreement shall be given in writing, in the English language, and shall be deemed given when personally delivered, when sent by email or confirmed fax, or three days after being sent by prepaid certified mail or nationally recognized overnight courier to the addresses set forth on the Order Form.
11.4. Assignment. Neither party may assign, transfer, delegate, sell or otherwise dispose of the Agreement, whether in whole or in part (including, without limitation, by operation of law), without the other party’s prior written consent. Any purported assignment, transfer, delegation, sale or other disposition in contravention of the foregoing is void. Notwithstanding the foregoing, either party, in its discretion, may assign the Agreement in connection with the sale of all or substantially all its assets, equity interests or business or to any affiliated entity. Subject to the foregoing, the Agreement will be binding upon and will inure to the benefit of the parties’ permitted successors and assigns.
11.5. Governing Law. This Agreement will be governed by and interpreted in accordance with the Laws of the State of California without regard to any conflict of laws principles.
11.6. Arbitration. In the event of any dispute concerning the validity, interpretation, enforcement or breach of this Agreement, the parties unconditionally and irrevocably agree that the dispute will be resolved by arbitration (and accordingly they hereby consent to personal jurisdiction over them) in Santa Clara County, California in accordance with the Commercial Dispute Resolution Procedures of the American Arbitration Association and, in the event either party seeks injunctive or provisional relief, the Optional Rules for Emergency Measures of Protection. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of
competent jurisdiction. Without limiting the foregoing, the parties agree that any such arbitrator’s decision may be enforced in, and accordingly submit to the nonexclusive jurisdiction and venue of, any court of competent jurisdiction sitting in Santa Clara County, California. The arbitrator shall have the discretion to award the prevailing party its reasonable attorneys’ fees and arbitration costs from the other party.
11.7. Amendment and Waiver. Except as otherwise provided herein, no amendment to, or waiver of, any provision of this Agreement will be effective unless in writing and signed by both parties. The waiver by any party of any breach or default will not constitute a waiver of any different or subsequent breach or default.
11.8. Severability. Each provision of this Agreement shall be viewed as separate and distinct, and if any provision shall be deemed by an arbitrator or a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court or arbitrator finding such illegality, invalidity or unenforceability shall modify or reform this Agreement to give as much effect as possible to such provision. Any provision which cannot be so modified or reformed shall be deleted and the remaining provisions of this Agreement shall continue in full force and effect.
11.9. Force Majeure. Neither party will be responsible for any failure or delay in its performance under this Agreement (except for any payment obligations) due to causes beyond its reasonable control, including, but not limited to, labor disputes, strikes, lockouts, shortages of or inability to obtain energy, raw materials or supplies, war, terrorism, riot, pandemics, epidemics, acts of God, or outages caused by the failure of public network or communications components.
11.10. Entire Agreement. This Agreement, including any Usage Requirements, constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter of this Agreement and supersede all prior or contemporaneous agreements or understandings relating to their subject matter.
11.11. Headings. Headings are for convenience only and are not deemed to be part of this Agreement.