If you signed an offline variant of this Agreement for use of the Services, the terms below do not apply to you, and your offline terms govern your use of the Services.
This SailPlan Master Services Agreement (the “Agreement”) are entered into by SailPlan and the entity or person agreeing to these terms (“Customer”) and govern Customer’s access to and use of the Services. This Agreement is effective as of the date of the last signature appearing on Customer’s initial Order Form (the “Effective Date”).
1. Provision of the Services.
1.1 Services Use. During the Term, SailPlan will provide the Software, Services, and any Hardware specified in an Order Form in accordance with this Agreement, and Customer and its End Users may use the Services in accordance with this Agreement.
1.2 Customer Access to the Services. SailPlan will provide the Services to Customer by (a) providing access to an Instance for the SailPlan Hosted Deployment or (b) providing a license key for the Customer Hosted Deployment. Customer may only use the Services with databases and servers licensed and/or owned by Customer. Customer may configure the Services for Internal Business Purposes and External Business Purposes only to the extent authorized in the Order Form.
1.3. Beta Features. Reserved
1.4 Services Use Review. Within 30 days of SailPlan’s written request, Customer will provide a sufficiently detailed written usage report listing the Deployment Attributes being used for each Scope of Use, the number and type of End Users using the Services during the requested period, and the Instance(s) deployed, along with the related license key(s). To the extent the usage reports can be measured by a ping from SailPlan’s license server, the ping will serve as the report. If requested, Customer will provide reasonable assistance and access to information to verify the accuracy of any information provided to SailPlan, which verification may include access to records relating to Customer’s use of the Services. If the review indicates an underpayment, Customer will pay the additional Fees associated with the underpayment.
1.5 Modifications.
(a) To the Services.
- Limitations on Changes. SailPlan may update the Services, provided the updates do not result in a material reduction of the functionality, performance, availability, or security of the Services.
- Discontinuance. Notwithstanding Section 1.5(a) (Limitations on Changes), SailPlan may discontinue a Service (or associated material functionality), provided that SailPlan will notify Customer at least 12 months before discontinuing any Service (or associated material functionality), unless SailPlan replaces such discontinued Service or functionality with a materially similar Service or functionality.
- Support. SailPlan will continue to provide product and security updates, until the conclusion of the applicable notice period under subsection 1.5(a)(ii) (Discontinuance).
(b) To the Agreement. SailPlan may change the terms of this Agreement from time to time and will post any such changes a https://sailplan.com/terms-and-conditions/msa/. These changes will only take effect at the beginning of Customer’s next Order Term, at which time Customer’s continued use of the Services will constitute its acceptance of the changes.
(c) Permitted Changes. Sections 1.5(a) (Changes to Services) do not limit SailPlan’s ability to make changes required to comply with applicable law or address a material security risk, or that are applicable to new or pre-general availability Services, offerings, or functionality.
1.7 Software and Third-Party Offerings. SailPlan may make Software available to Customer in connection with Customer’s use of the Services, including third-party software. Any use of Third-Party Offerings is subject to separate terms and policies with the relevant service provider. If this Agreement or the Order Form terminates or expires, then Customer will stop using the Software.
2. Payment Terms.
2.1 Payment. SailPlan will invoice Customer for the Fees for the Services, Hardware, and Software. Customer will pay all invoiced amounts by the Payment Due Date. Unless otherwise provided in this Agreement or required by law, Fees are non-refundable. All payments are due in the currency described in the invoice. Wire transfer payments must include the bank information described in the invoice.
2.2 Usage and Invoicing. SailPlan’s measurement tools will be used to determine Customer’s usage of the Services. Each invoice will include data in sufficient detail to allow Customer to validate the Services purchased and associated Fees. If Customer exceeds the number of End Users, Scope of Use, or Deployment Attributes, Customer or SailPlan will, upon becoming aware, promptly notify the other party and the parties agree to discuss in good faith the additional Fees due by Customer to SailPlan for such over-deployment. The agreed upon additional Fees associated with the over-deployment will be memorialized in a new Order Form.
2.3. Additional Usage. Customer may purchase additional Deployment Attributes (including adding End Users) during an Order Term by executing an additional Order Form. Such purchase will have a pro-rated term ending on the last day of the applicable Order Term. Deployment Attributes cannot be decreased during the Order Term.
2.4. Taxes.
(a) Customer is responsible for any Taxes, and will pay SailPlan for the Services without any reduction for Taxes. If SailPlan is obligated to collect or pay any Taxes, the Taxes will be invoiced to Customer and Customer will pay such Taxes to SailPlan, unless Customer provides SailPlan with a timely and valid tax exemption certificate in respect of those Taxes.
(b) Customer will provide SailPlan with any applicable tax identification information that SailPlan may require under applicable law to ensure its compliance with applicable tax regulations and authorities in applicable jurisdictions. Customer will be liable to pay (or reimburse SailPlan for) any taxes, interest, penalties, or fines arising out of any mis-declaration by Customer.
2.5. Payment Disputes. Customer must submit any invoice disputes to hello@sailplan.com in good faith before the Payment Due Date. If SailPlan, having reviewed the dispute in good faith, determines that Fees were incorrectly invoiced, then SailPlan will without undue delay issue a credit equal to the amount determined to be incorrectly invoiced.
2.6. Delinquent Payments; Suspension. Late payments (excluding amounts subject to a good faith payment dispute submitted before the Payment Due Date) may bear interest at the rate of 1.7% per month (or the highest rate permitted by law, if less) from the Payment Due Date until paid in full. Customer will be responsible for all reasonable expenses (including attorneys’ fees) incurred by SailPlan in collecting such delinquent amounts. Additionally, SailPlan may Suspend the Services in the event of any late payment for the Services.
2.7 No Purchase Order Number Required. Customer is obligated to pay all applicable Fees without any requirement for SailPlan to provide a purchase order number on SailPlan’s invoice (or otherwise).
3. Customer Obligations
3.1 Compliance. Customer will (a) ensure that Customer and its End Users’ use of the Services complies with this Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized access or use of the Services, and (c) promptly notify SailPlan of any unauthorized use of, or access to, the Services or Customer’s password of which Customer becomes aware. SailPlan reserves the right to investigate any potential violation of the AUP by Customer, which may include reviewing Customer Applications or Customer Data.
3.2 Privacy. Customer is responsible for any consents and notices required to permit (a) Customer’s use and receipt of the Services and (b) SailPlan’s accessing, storing, and processing of data provided by customer (including Customer Data, if applicable) under this Agreement and the Order Form.
3.3. Restrictions. Customer will not, and will not allow End Users to, (a) copy, modify, create a derivative work of the Services or the Hardware; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any of the source code of the Services (except to the extent such restriction is expressly prohibited by applicable law) or the Hardware; (c) sell, resell, sublicense, transfer, or distribute the Services or the Hardware; or (d) access or use the Services (i) for High Risk Activities; (ii) in a manner intended to avoid incurring Fees or to circumvent usage limits or quotas; (iii) for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; (iv) or in a manner that breaches, or causes the breach of, Export Control Laws.
3.4 Documentation. SailPlan may provide Documentation for Customer’s use of the Services.
4. Suspension.
4.1 AUP Violations. If SailPlan becomes aware that Customer’s or any End User’s use of the Services violates the AUP, SailPlan will notify Customer and request that Customer correct the violation. If Customer fails to correct the violation within 24 hours of SailPlan’s request,then SailPlan may Suspend all or part of Customer’s use of the Services until the violation is corrected.
4.2 Other Suspension. Notwithstanding Section 4.1 (AUP Violations), SailPlan may immediately Suspend all or part of Customer’s use of the Services if (a) SailPlan reasonably believes Suspension is needed to protect the Services, SailPlan’s infrastructure supporting the Services, or any other customer of the Services (or their end users); (b) there is suspected unauthorized third-party access to the Services; (c) SailPlan reasonably believes that immediate Suspension is required to comply with any applicable law; or (d) Customer is in breach of Section 3.3 (Restrictions). SailPlan will lift any such Suspension when the circumstances giving rise to the Suspension have been resolved. At Customer’s request, SailPlan will, unless prohibited by applicable law, notify Customer of the basis for the Suspension as soon as is reasonably possible.
5. Intellectual Property Rights; Protection of Customer Data; Feedback.
5.1 Intellectual Property Rights. Except as expressly described in this Agreement, this Agreement does not grant either party any rights, implied or otherwise, to the other’s content or intellectual property. As between the parties, Customer retains all Intellectual Property Rights in Customer Data and Customer Applications, and SailPlan retains all Intellectual Property Rights in the Services and Software.
5.2 Protection of Customer Data. SailPlan will only access, use, and otherwise process Customer Data in accordance with a Data Processing Addendum, if one has been exercised, and will not access, use, or process Customer Data for any other purpose. SailPlan has implemented and will maintain technical, organizational, and physical measures to protect Customer Data, as further described in such Data Processing Addendum.
5.3 Customer Feedback. At its option, Customer may provide feedback and suggestions about the Services to SailPlan (“Feedback”). If Customer provides Feedback, then SailPlan and its Affiliates may use that Feedback without restriction and without obligation to Customer.
6. Reserved
7. Confidential Information.
7.1 Obligations. The recipient will only use the disclosing party’s Confidential Information to exercise its rights and fulfill its obligations under this Agreement, and will use reasonable care to protect against the disclosure of the disclosing party’s Confidential Information. The recipient may disclose Confidential Information only to its Affiliates, employees, agents, or professional advisors (“Delegates”) who need to know it and who have agreed in writing (or in the case of professional advisors are otherwise bound) to keep it confidential. The recipient will ensure that its Delegates use the received Confidential Information only to exercise rights and fulfill obligations under this Agreement.
7.2 Required Disclosure. Notwithstanding any provision to the contrary in this Agreement, the recipient or its Affiliate may also disclose Confidential Information to the extent required by applicable Legal Process; provided that the recipient uses commercially reasonable efforts to (a) promptly notify the other party prior to such disclosure; and (b) comply with the other party’s reasonable requests to oppose disclosure of its Confidential Information. Notwithstanding the foregoing, subsections (a) and (b) above will not apply if the recipient determines that complying with (a) and (b) could (i) result in violation of Legal Process; (ii) obstruct a governmental investigation; or (iii) lead to death or serious physical harm to an individual
8. Term and Termination.
8.1 Agreement Term. This term of this Agreement (the “Term”) will begin on the Effective Date and continue until it is terminated as stated in this Section 8 (Term and Termination).
8.2 Termination for Breach.
(a) Termination of an Order Form. To the extent permitted by applicable law, either party may terminate an Order Form on written notice if the other party is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice of the breach.
(b) Termination of this Agreement. To the extent permitted by applicable law, either party may terminate this Agreement on written notice if the other party (i) is in material breach of this Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) ceases its business operations, or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
8.3 Termination for Convenience. Subject to any financial commitments in an Order Form or addendum to this Agreement, Customer may terminate this Agreement or an Order Form for convenience at any time with 30 days’ prior written notice to SailPlan.
8.4 Termination Due to Applicable Law; Violations of Law.SailPlan may terminate this Agreement immediately on written notice if SailPlan reasonably believes that (a) continued provision of the Services would violate applicable law(s) or (b) Customer has violated or caused SailPlan to violate any Anti-Bribery Laws or Export Control Laws.
8.5 Effect of Termination. If this Agreement terminates, then all Order Forms also terminate. If an Order Form terminates or expires, then after that Order Form’s termination or expiration effective date, (a) all rights and access to the Services under that Order Form will terminate (including access to Customer Data, if applicable), and (b) SailPlan will send Customer a final invoice (if applicable) for payment obligations under that Order Form. Termination or expiration of one Order Form will not affect other Order Forms.
9. Publicity. Customer may state publicly that it is a SailPlan customer and display SailPlan Brand Features in accordance with the Trademark Guidelines. SailPlan may use Customer’s name and Brand Features in online or offline promotional materials of the Services. Each party may use the other party’s Brand Features only as permitted in this Agreement. Any use of a party’s Brand Features will inure to the benefit of the party holding Intellectual Property Rights to those Brand Features.
10. Representations and Warranties. Each party represents and warrants that it (i) has full power and authority to enter into this Agreement and (ii) will comply with all laws and regulations applicable to its provision, receipt, or use of the Services, as applicable.
11. Disclaimer. Except as expressly provided for in this Agreement, to the fullest extent permitted by applicable law, SailPlan does not make and expressly disclaims to the fullest extent permitted by applicable law (a) any warranties of any kind, whether express, implied, statutory, or otherwise, including warranties of merchantability, fitness for a particular use, noninfringement, or error-free or uninterrupted use of the Services or Software and (b) any representations about content or information accessible through the Services.
11.1 Hardware Warranty. SailPlan will pass through to Customer all warranties, if any, which SailPlan receives from its suppliers for the Hardware. Customer will reimburse SailPlan for all travel expenses SailPlan incurs in providing Hardware warranty services to Customer hereunder in accordance with an Order Form.
12. Limitation of Liability.
12.1 Limitation on Indirect Liability. To the extent permitted by applicable law and subject to Section 12.3 (Unlimited Liabilities), neither party will have any Liability arising out of or relating to this Agreement for any (a) indirect, consequential, special, incidental, or punitive damages or (b) lost revenues, profits, savings, or goodwill.
12.2 Limitation on Amount of Liability. Each party’s total aggregate Liability for damages arising out of or relating to this Agreement is limited to the Fees Customer paid during the 12 month period before the event giving rise to Liability, except SailPlan’s total aggregate Liability for damages arising out of or related to Services or Software provided free of charge is limited to $5,000.
12.3 Unlimited Liabilities. Nothing in this Agreement excludes or limits either party’s Liability for:
(a) its fraud or fraudulent misrepresentation;
(b) its obligations under Section 13 (Indemnification);
(c) its infringement of the other party’s Intellectual Property Rights;
(d) its payment obligations under this Agreement; or
(e) matters for which liability cannot be excluded or limited under applicable law.
13. Indemnification.
13.1 SailPlan Indemnification Obligations. SailPlan will defend Customer and its Affiliates using the Services under Customer’s subscription for the Services, and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from an allegation that the Services, Software or any SailPlan Brand Feature used in accordance with the Agreement infringe the third party’s Intellectual Property Rights.
13.2 Customer Indemnification Obligations. Customer will defend SailPlan and its Affiliates providing the Services and indemnify them against Indemnified Liabilities in any Third-Party Legal Proceeding to the extent arising from (a) any Customer Application, Customer Data or Customer Brand Features or (b) Customer’s or an End User’s use of the Services in breach of the AUP or Section 3.3 (Restrictions).
13.3 Exclusions. Sections 13.1 (SailPlan Indemnification Obligations) and 13.2 (Customer Indemnification Obligations) will not apply to the extent the underlying allegation arises from (a) the indemnified party’s breach of this Agreement, (b) a combination of the indemnifying party’s technology or Brand Features with materials not provided by the indemnifying party under this Agreement, unless the combination is required by this Agreement and (c) in the case of SailPlan or any of its Affiliates as the indemnifying party, any Services provided to Customer free of charge.
13.4 Conditions. Sections 13.1 (SailPlan Indemnification Obligations) and 13.2 (Customer Indemnification Obligations) are conditioned on the following:
(a) Any indemnified party must promptly notify the indemnifying party in writing of any allegation(s) that preceded the Third-Party Legal Proceeding and cooperate reasonably with the indemnifying party to resolve the allegation(s) and Third-Party Legal Proceeding. If breach of this Section 13.3(a) prejudices the defense of the Third-Party Legal Proceeding, the indemnifying party’s obligations under Section 13.1 (SailPlan Indemnification Obligations) or 13.2 (Customer Indemnification Obligations) (as applicable) will be reduced in proportion to the prejudice.
(b) Any indemnified party must tender sole control of the indemnified portion of the Third-Party Legal Proceeding to the indemnifying party, subject to the following: (i) the indemnified party may appoint its own non-controlling counsel, at its own expense; and (ii) any settlement requiring the indemnified party to admit liability, pay money, or take (or refrain from taking) any action, will require the indemnified party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed.
13.5 Remedies.
(a) If SailPlan reasonably believes the Services might infringe a third party’s Intellectual Property Rights, then SailPlan may, at its sole option and expense, (i) procure the right for Customer to continue using the Services, (ii) modify the Services to make them non-infringing without materially reducing their functionality, or (iii) replace the Services with a non-infringing, functionally equivalent alternative.
(b) If SailPlan does not believe the remedies in Section 13.5(a) are commercially reasonable, then SailPlan may Suspend or terminate the impacted Services.
13.6 Sole Rights and Obligations. Without affecting either party’s termination or Suspension rights and to the extent permitted by applicable law, this Section 13 (Indemnification) states the parties’ sole and exclusive remedy under this Agreement for any third-party allegations of Intellectual Property Rights infringement covered by this Section 13 (Indemnification).
14. Miscellaneous
14.1 Notices. Under the Agreement, notices to Customer must be sent to the Notification Email Address and notices to SailPlan must be sent to hello@sailplan.com.. Notice will be treated as received when the email is sent. Customer is responsible for keeping its Notification Email Address current throughout the Term.
14.2 Emails. The parties may use emails to satisfy written approval and consent requirements under this Agreement.
14.3 Assignment. Neither party may assign this Agreement without the written consent of the other, except to an Affiliate where (a) the assignee has agreed in writing to be bound by the terms of this Agreement, (b) the assigning party has notified the other party of the assignment, and (c) if the Customer is the assigning party, the assignee is established in the same country as Customer. Any other attempt to assign is void.
14.4 Change of Control. If a party experiences a change of Control other than an internal restructuring or reorganization (for example, through a stock purchase or sale, merger, or other form of corporate transaction), then that party will give written notice to the other party within 30 days after the change of Control.
14.5 Force Majeure. Neither party will be liable for failure or delay in performance of its obligations to the extent caused by circumstances beyond its reasonable control, including acts of God, natural disasters, terrorism, riots, or war.
14.5 Subcontracting. SailPlan may subcontract obligations under this Agreement but will remain liable to Customer for any subcontracted obligations.
14.7 No Agency. This Agreement does not create any agency, partnership, or joint venture between the parties.
14.8 No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.
14.9 Severability. If any part of this Agreement is invalid, illegal, or unenforceable, the rest of this Agreement will remain in effect.
14.10 No Third-Party Beneficiaries. This Agreement does not confer any rights or benefits to any third party unless it expressly states that it does.
14.11 Equitable Relief. Nothing in this Agreement will limit either party’s ability to seek equitable relief.
14.12. U.S. Governing Law.
(a) For U.S. City, County, and State Government Entities. If Customer is a U.S. city, county, or state government entity, then the Agreement will be silent regarding governing law and venue.
(b) For U.S. Federal Government Entities. If Customer is a U.S. federal government entity, then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE UNITED STATES OF AMERICA, EXCLUDING ITS CONFLICT OF LAWS RULES. SOLELY TO THE EXTENT PERMITTED BY FEDERAL LAW, (I) THE LAWS OF THE STATE OF FLORIDA (EXCLUDING FLORIDA’S CONFLICT OF LAWS RULES) WILL APPLY IN THE ABSENCE OF APPLICABLE FEDERAL LAW; AND (II) FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES, THE PARTIES CONSENT TO PERSONAL JURISDICTION IN, AND THE EXCLUSIVE VENUE OF, THE COURTS IN BROWARD COUNTY, FLORIDA.
(c) For All Other Entities. If Customer is any entity not identified in Section 14.12(a) (U.S. Governing Law for U.S. City, County, and State Government Entities) or (b) (U.S. Governing Law for Federal Government Entities), then the following applies: ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICES WILL BE GOVERNED BY FLORIDA LAW, EXCLUDING THAT STATE’S CONFLICT OF LAWS RULES, AND WILL BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF BROWARD COUNTY, FLORIDA, USA; THE PARTIES CONSENT TO PERSONAL JURISDICTION IN THOSE COURTS.
14.13 Amendments. Except as stated in Section 1.6(b) (Modifications: To the Agreement), 1.6(c) (Modifications: To URL Terms) and Section 1.6(d) (Permitted Changes), any amendment to this Agreement must be in writing, signed by both parties and expressly state that it is amending this Agreement.
14.14 Survival. The following Sections will survive expiration or termination of this Agreement: Section 2 (Payment Terms), Section 5 (Intellectual Property Rights; Protection of Customer Data; Feedback), Section 7 (Confidential Information), Section 8 (Effect of Termination) Section 11 (Disclaimer), Section 12 (Limitation of Liability), Section 13 (Indemnification), and Section 14 (Miscellaneous).
14.15 Entire Agreement. This Agreement states all terms agreed between the parties and supersedes all other agreements between the parties relating to its subject matter, including any prior version(s) of this Agreement (“Prior Version”); provided, however, if Customer has entered into an Order Form governed by a Prior Version, this Agreement will take effect on the effective date of Customer’s next Order Term, at which time Customer’s continued use of the Services will constitute acceptance of the Agreement. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation, or warranty (whether made negligently or innocently), except those expressly described in this Agreement. The URL Terms are incorporated by reference into this Agreement. After the Effective Date, SailPlan may provide an updated URL in place of any URL in this Agreement.
14.16 Conflicting Terms. If there is a conflict among the documents that make up this Agreement, then the documents will control in the following order (of decreasing precedence): the applicable Order Form, the Data Processing Addendum, the remainder of the Agreement (excluding the URL Terms), and the other URL Terms (excluding the Data Processing Addendum).
14.17 Headers. Headings and captions used in this Agreement are for reference purposes only and will not have any effect on the interpretation of this Agreement.
14.18 Conflicting Languages. If this Agreement is translated into any other language, and there is a discrepancy between the English text and the translated text, the English text will govern unless expressly stated otherwise in the translation.
14.19 Counterparts. The parties may execute this Agreement in counterparts, including facsimile, PDF, and other electronic copies, which taken together will constitute one instrument.
14.20 Electronic Signatures. The parties consent to electronic signatures.
14.21 Definitions.
“Affiliate” means any entity that directly or indirectly Controls, is Controlled by, or is under common Control with a party.
“Anti-Bribery Laws” means all applicable commercial and public anti-bribery laws, including the U.S. Foreign Corrupt Practices Act of 1977 and the UK Bribery Act 2010, that prohibit corrupt offers of anything of value, either directly or indirectly, to anyone, including government officials, to obtain or keep business or to secure any other improper commercial advantage. Government officials include: any government employees, candidates for public office, members of royal families, and employees of government-owned or government-controlled companies, public international organizations, and political parties.
“AUP” means the then-current acceptable use policy for the Services stated at https://SailPlan.com/terms/aup .
“Brand Features” means the trade names, service marks, trademarks, logos, domain names, and other distinctive brand features of each party, respectively, as secured by such party from time to time.
“Confidential Information” means information that one party (or an Affiliate) discloses to the other party under this Agreement, and that is marked as confidential or would normally be considered confidential information under the circumstances. Customer Data is Customer’s Confidential Information. Confidential Information does not include information that is independently developed by the Recipient, is rightly given to the Recipient by a third party without confidentiality obligations, or becomes public through no fault of the Recipient.
“Control” means control of greater than 50% of the voting rights or equity interests of a party.
“Customer Application” means a software program that Customer creates or hosts and that uses the Services. A Customer Application may be a website.
“Customer Data” means (a) all data in Customer’s databases provided to SailPlan by Customer or End Users via the Services and (b) all results provided to Customer or End Users for queries executed against such data via the Services.
“Customer Hosted Deployment” means the Software installed by or for Customer at Customer’s premises or on a Customer-controlled server within a data center selected and managed by Customer. A Customer Hosted Deployment includes the In-Product Services.
“Data Processing Addendum” means the then-current terms describing data processing and security obligations with respect to Customer Data.
“Deployment Attributes” means the quantified usage of the Services as specified on an Order Form, which include, but are not limited to the number of Instances, End Users, API calls or other licensing attributes defined by the Scope of Use.
“Documentation” means the user guides and manuals for the Services provided by SailPlan for Customer’s own internal use.
“End User” or “Customer End User” means an individual that Customer permits to use the Services. End Users may include employees of Customer’s Affiliates or PBL Users.
“Export Control Laws” means all applicable export and re-export control laws and regulations, including (a) the Export Administration Regulations (“EAR”) maintained by the U.S. Department of Commerce, (b) trade and economic sanctions maintained by the U.S. Treasury Department’s Office of Foreign Assets Control, and (c) the International Traffic in Arms Regulations (“ITAR”) maintained by the U.S. Department of State.
“External Business Purposes”, or “Powered by SailPlan” means the use of the Services or Software embedded in a Customer Application.
“Fees” means the product of the amount of Services, Hardware, and Software ordered by Customer multiplied by the Prices, plus any applicable Taxes.
“Hardware” means the physical components described in an Order Form.
“High Risk Activities” means activities where the use or failure of the Services would reasonably be expected to lead to death, personal injury, or environmental or property damage (such as the creation or operation of nuclear facilities, air traffic control, life support systems, or weaponry).
“In-Product Services” means the services hosted and made accessible by SailPlan through the Software, specifically licensing data, configuration backups, system error reports, data actions and support tickets.
“Indemnified Liabilities” means any (a) settlement amounts approved by the indemnifying party, and (b) damages and costs finally awarded against the indemnified party by a court of competent jurisdiction.
“Instance” means one single configuration of the Software’s administrative settings and application database, subject to the platform restrictions detailed in the Order Form. Each Instance requires a unique license key to operate. Multiple identically configured Instances running with separate configurations are considered separate instances.
“Intellectual Property Right(s)I” means all patent rights, copyrights, trademark rights, rights in trade secrets (if any), design rights, database rights, domain name rights, moral rights, and any other intellectual property rights (registered or unregistered) throughout the world.
“Internal Business Purposes” means use of the Services by or for the benefit of Customer’s internal operations.
“Legal Process” means an information disclosure request made under law, governmental regulation, court order, subpoena, warrant, or other valid legal authority, legal procedure, or similar process.
“Liability” means any liability, whether under contract, tort (including negligence), or otherwise, regardless of whether foreseeable or contemplated by the parties.
“SailPlan Hosted Deployment” means the Software installed by SailPlan on a web connected platform that is run in a third-party hosting facility designated by SailPlan, unless otherwise agreed by the parties in an Order Form. A SailPlan Hosted Deployment includes the In-Product Services.
“Notification Email Address” means the email address(es) designated by Customer in the Order Form.
“Order Form” means an order form executed by Customer and SailPlan specifying the Services SailPlan will provide to Customer under this Agreement.
“Order Term” means the period of time starting on the Services Start Date for the Services and continuing for the period indicated on the Order Form unless terminated in accordance with this Agreement.
“Payment Due Date” means 30 days from the invoice date.
“PBL Client” means (i) the PBL User or (ii) Customer’s client that authorizes use of the Services by PBL Users.
“PBL User” is an individual authorized to use the Services for External Business Purposes as an End User.
“Prices” means the applicable prices for the Services, Software, or Hardware agreed to by SailPlan and Customer in an Order Form or amendment to this Agreement, and SailPlan Technical Support Services. Prices do not include Taxes.
“Scope of Use” means Customer’s specific use case for the Services as defined in an Order Form, which may include limitations on Customer’s use for Internal Business Purposes and/or External Business Purposes.
“Services” or “SailPlan Services” or “SailPlan Services” means the integrated business intelligence and embedded analytics platform (including the software components that connect to APIs) provided as either a SailPlan Hosted Deployment or a Customer Hosted Deployment. Services include Hardware where relevant.
“Services Start Date” means either the start date described in the Order Form or, in the absence of any such date, the date SailPlan makes the Services available to Customer.
“SLA” or “Service Level Agreement” means the then-current service level agreements applicable to the SailPlan Hosted Deployment or SailPlan Cloud, described at https://sailplan.com/terms-and-conditions/ (if applicable).
“Software” means any downloadable tools and jar files provided under this Agreement, and any copies, modifications, derivative works or enhancements thereto. Software excludes Third-Party Offerings.
“Suspend” or “Suspension” means disabling or limiting access to or use of the Services or components of the Services.
“Taxes” means all government-imposed taxes, except for taxes based on SailPlan’s net income, net worth, asset value, property value, or employment.
“Term” has the meaning stated in Section 8.1 (Agreement Term) of this Agreement.
“Third-Party Legal Proceeding” means any formal legal proceeding filed by an unaffiliated third party before a court or government tribunal (including any appellate proceeding).
“Third-Party Offerings” means (a) third-party services, software, products, and other offerings that are not incorporated into the Services or Software.
“URL Terms” means the AUP, Data Processing Addendum, and the SLA.
15. Regional Terms Customer agrees to the following modifications to the Agreement if Customer’s billing address is in the applicable region as described below