These Terms and Conditions govern the use, and Seethru Network’s (“Seethru”) provision, of the Seethru network management platform and associated applications (our “Service”). Other terms associated with the use of and subscription to the Service, such as pricing and the entity licensing the Service (“Customer”), are set forth in an order form that references these Terms and Conditions and is executed by Customer and Seethru (“Order Form”). Where there is a direct conflict between these Terms and Conditions and an Order Form, the terms contained in the Order Form will apply. Any conflicting or additional terms and conditions are of no force or effect unless agreed to in writing signed by an authorized officer of Seethru. These Terms and Conditions together with the Order Form are referred to as the “Agreement.” The Service is available to users to whom Customer grants access to the Service under Customer’s account (“Users”) as more fully described in the Order Form.
2.1 Customer’s Users may use and have access to the Service and the associated generally published technical documentation for the Service (“Documentation”) provided such use and access is for Customer’s own internal business operations and not for the benefit of a third party. Customer agrees to use and access the Services in compliance with any restrictions on an Order Form. In some cases, Users may need to download, install and use software provided by Seethru in order to access the Service (“Software”) and Seethru licenses Customer’s Users to do so provided the Software is used only in conjunction with the Service. The Documentation may be provided in hard copy form or online. Customer acknowledges that access to the Service via the Software may require that Customer upgrade the Software as such upgrades become available.
2.2 Seethru will provide basic support services, unless otherwise stated on the Order Form. Support services are provided through telephone, electronic mail or another online mechanism.
2.3 Restrictions: Customer agrees not to, directly or indirectly:
2.3.1 modify, translate, copy or create derivative works based on the Service or any element of the Software,
2.3.2 “frame” or “mirror” any content forming part of the Service,
2.3.3 reverse assemble, reverse compile, reverse engineer, decompile or otherwise attempt to discover the object code, source code, non-public APIs or underlying ideas or algorithms of the Service or the Software in whole or in part, except as and only to the extent this restriction is prohibited by law,
2.3.4 license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party, other than as contemplated by this Agreement,
2.3.5 remove or obscure any proprietary or other notice contained in the Service or
2.3.6 use the Service or Software in connection with the development or offering of a service or product substantially similar to the Service or copying the features or user interface of the Service.
2.4 It is Customer’s responsibility to ensure that Customer complies with all applicable laws and has the right to use the Service both as Customer is using it, and where Users are located.
2.5 Customer may identify an individual as the administrator for the Service who will receive an administrative user name and password for Customer’s account. Customer will ensure that its Users are aware of and use the Service only in compliance with this Agreement. Customer is responsible for all activities of Users and is responsible for ensuring the security and confidentiality of all User and administrator IDs and passwords for the Service. The Customer shall prevent unauthorized access to, or use of, the Service, and shall notify Seethru promptly of any unauthorized use of the Service or any breach, or attempted breach, of security of the Service.
2.6 If third party services, applications, code, hardware or products (“Third Party Products”) are integrated or used in connection with the Services, Customer agrees that Seethru makes no representations and disclaims all warranties, express or implied, regarding Third Party Products.
3.1 Customer acknowledges and agrees that the Service, the Software and the Documentation are protected by UK and international copyright, trademark, patent, trade secret and other intellectual property or proprietary rights laws.
3.2 Seethru owns and retains all right, title and interest (including, without limitation, all patent, copyright, trade secret and other intellectual property rights) in and to the Service, the Software, the Documentation, any other deliverables, any and all related and underlying technology and any derivative works or modifications of any of the foregoing.
3.3 The Software and access to the Service are licensed, not sold and Customer acquires no ownership or other interest (other than the license rights expressly stated herein) in or to the Service, the Software and the Documentation.
3.4 The Service is offered as an on-line, hosted solution, and Customer has no right to obtain a copy of the Service itself.
3.5 From time to time, Customer may provide Seethru with suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Service or Software (“Feedback”). Feedback shall not be deemed to constitute Confidential Information or to impose any confidentiality obligations on Seethru. Customer agrees that Seethru is free to use, disclose, reproduce, license or otherwise distribute and exploit any Feedback as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
4.1 Confidentiality and Non-Use. Each party (the “Recipient”) understands that, in connection with this Agreement, the other party (the “Discloser”) may disclose business, technical or financial information relating to the Discloser’s business. Such information shall be considered the “Confidential Information” of the Discloser provided that it is marked or otherwise designated at the time of disclosure as “confidential” or “proprietary” or the like. Seethru’ Confidential Information includes, without any marking or further designation:
the pricing and other terms reflected in all Order Forms hereunder,
any trade secrets, know-how, inventions (whether or not patentable), techniques, ideas, or processes related to the Services,
the design and architecture of the Services, the computer code, internal documentation, and design and functional specifications of the Services,
any problem reports, analysis and performance information related to the Services and
reports, analyses and/or other information relating to Seethru’ security and security practices.
Customer’s Confidential Information includes, without marking or further designation,
the network performance data collected and stored through the Service (defined below) and
the usernames and passwords of Customer’s Users.
4.2 Except in order to provide the Services or as otherwise permitted herein, during the Term and for a period of five (5) years after expiration or termination, the Recipient agrees to use and disclose Confidential Information solely for the purpose of performing its obligations under this Agreement and to protect the Confidential Information with at least the same degree of care it normally exercises to protect its own proprietary information of a similar nature, but in no event less than a reasonable standard of care.
4.3 The Discloser agrees that the foregoing obligations shall not apply with respect to any information that the Recipient can show has become generally available to the public through no fault of the Recipient, or was rightfully in its possession or known by it prior to receipt from the Discloser.
4.4 By the nature of providing the Service, Seethru collects certain data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (“Data”). Seethru shall have the right to collect and analyze such Data, and Customer grants Seethru the right to use and disclose such Data (during and after the Term) solely in an aggregate or other de-identified form to improve and enhance the Services, for other development, diagnostic and corrective purposes in connection with the Services and other offerings, or otherwise in connection with Seethru’ business.
5.1 In order to set up accounts and use the Services, Customer may provide information, such as IP address, username, password, and personally identifiable information (e.g., name, phone number, email address, etc.) (“User Data”). Customer grants Seethru and its subcontractors the right to store, process and retrieve User Data in connection with providing and supporting the Services. Customer warrants that it has obtained required consent from Customer’s Users to transfer User Data to Seethru and to process the User Data as contemplated by the Services, and agrees that Seethru may transfer to, store and process User Data where Seethru uses facilities in connection with the Services in order to provide the Services and support the Services. Such User Data provided or disclosed by Customer (as data controller or data exporter) is deemed “personal data” under applicable European Union law or regulation, and Seethru shall comply with Customer’s reasonable, lawful instructions relating to the security and confidentiality of the User Data, and will maintain administrative, physical, and technical safeguards intended to protect the security and integrity of the User Data and will process the User Data only in accordance with Customer’s lawful instructions or the lawful instructions of the data subject.
5.2 Users may transmit, upload and store network performance data, IP addresses and other information (“Network Performance Data”) in connection with Customer’s use of the Service (“Content”). The Customer represents and warrants that it owns, or has the necessary permissions to use and authorize the use of such network performance data. Customer grants Seethru and its subcontractors a non-exclusive, worldwide, royalty-free, paid-up, transferable right and license to host, cache, copy, store and display Customer’s network performance data for the purpose of and in conjunction with providing and supporting the Service. Customer acknowledges and agrees that, except as expressly set forth herein, Seethru is not responsible in any manner for Customer’s network performance data Content, and the Customer assumes all risk associated with the transmission, accuracy, quality, legality, and appropriateness of this network performance data.
6.1 The Customer agrees to pay the applicable fees as stated on each Order Form (the “Fees”). All Fees are are non-cancelable and non-refundable except as expressly stated on each Order Form. Seethru reserves the right to change the Fees or applicable charges and/or to institute new charges and Fees at the end of the initial term or the then current renewal term upon thirty (30) days’ prior notice (which may be sent by email), each as stated on the Order Form. If Customer believes that Seethru has billed Customer incorrectly, Customer must contact Seethru no later than sixty (60) days after the date of the invoice on which the believed error or problem appeared.
6.2 Invoicing. Seethru will generally bill through an invoice. Full payment for invoices issued in any given month must be received by Seethru thirty (30) days after the date of the invoice.
7.1 Term and Renewal. Subject to earlier termination as provided below, this Agreement is for the initial term stated on the Order Form and shall be automatically renewed for additional periods equal to the renewal term set forth in the Order Form. Either party may prevent such automatic renewal by providing the other written notice of non-renewal at least thirty (30) days prior to the end of the then-current term.
7.2 Termination for Cause. In addition to any other remedies either party may have, each party may terminate this Agreement if the other party materially breaches any of the terms or conditions of this Agreement and does not cure such breach within thirty (30) days (10 days in the event of non-payment) after notice; provided, however, that Seethru may terminate this Agreement without notice and opportunity to cure if in Seethru’ opinion such termination is required to prevent any violation of law or is required to do so by any court, governmental, or regulatory authority.
7.3 Effect of Termination. Upon non-renewal or termination of this Agreement for any reason, Customer agrees to pay in full for the Service up to and including the last day on which the Service is provided. If termination is due to Seethru’ uncured breach, Seethru will refund any pre-paid Fees on a pro-rated basis. Upon expiration or termination of this Agreement for any reason, Customer agrees to cease all use of the Service, Software and Documentation, installed or otherwise, and destroy all copies of any Software, and Documentation that are in Customer’s possession or control. Seethru may, upon such expiration or termination, deactivate or delete Customer’s account and any related data, information, and files, and bar any further access to such data, information, and files.
8.1 Seethru warrants that the Service will be provided in material compliance with the Documentation and to maintain the Service in a manner that minimizes errors and interruptions in the Service. However, the Service may be temporarily unavailable for scheduled or emergency maintenance, either by Seethru or by third-party providers, or because of other causes beyond Seethru’ reasonable control. Seethru will use reasonable efforts to provide Customer with advance notice of any scheduled maintenance.
8.2 DISCLAIMER. THE ABOVE WARRANTY IS CUSTOMER’S EXCLUSIVE WARRANTY AND SEETHRU DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES OF TITLE AND NON-INFRINGEMENT. THE CUSTOMER ACKNOWLEDGES THAT THE SERVICE IS PROVIDED “AS IS” AND FURTHER ACKNOWLEDGES THAT SEETHRU DOES NOT WARRANT THAT THE OPERATION OF THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE, OR FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; THAT THE SERVICE IS NOT VULNERABLE TO FRAUD OR UNAUTHORIZED USE OR THAT THE FEATURES OR FUNCTIONALITIES OF THE SERVICE WILL BE AVAILABLE AT ANY TIME IN THE FUTURE. CUSTOMER IS RESPONSIBLE AND SEETHRU SHALL HAVE NO RESPONSIBILITY FOR DETERMINING THAT CUSTOMER’S PROPOSED USE OF THE SERVICE COMPLIES WITH APPLICABLE LAWS.
8.3 IF THE SERVICE PROVIDED IS A NO-CHARGE EVALUATION OR BETA RELEASE, THE FOLLOWING APPLIES IN PLACE OF SECTIONS 8.1 8.2: NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, THE SERVICE IS PROVIDED BY SEETHRU IN AN “AS IS” CONDITION AS TO PERFORMANCE, ACCURACY, AND/OR COMPLETENESS WITH NO WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED.
8.4 LIMITATION OF LIABILITY. NOTWITHSTANDING ANYTHING HEREIN TO THE CONTRARY, IN NO EVENT SHALL SEETHRU (OR ANY SUPPLIER, LICENSOR OR CHANNEL PARTNER OF SEETHRU) BE LIABLE WITH RESPECT TO ANY CAUSE RELATED TO OR ARISING OUT OF THIS AGREEMENT, WHETHER IN AN ACTION BASED ON A CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER LEGAL THEORY, HOWEVER ARISING, FOR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, DAMAGES BASED ON LOST REVENUES OR PROFITS, LOSS OF BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA OR BREACHES IN SYSTEM SECURITY OR ANY DAMAGES THAT EXCEED THE TOTAL FEES PAID AND/OR OWED BY CUSTOMER FOR THE SERVICES DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT WHICH GIVES RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY WHETHER OR NOT SEETHRU HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.1 Seethru reserves the right to modify and/or update the Service and/or any components thereof, the Documentation, its support policies, its security and privacy policies and any other information and/or policies at Seethru’ sole discretion and without notice; provided that such changes shall not materially decrease the functionality of the Service that Customer has subscribed to during the then current Term.
10.1 The English courts will have exclusive jurisdiction over any claim arising from, or related to this Agreement.
11.1 Notices to be given by either party to other pursuant to this Agreement shall be in writing and directed to the address provided in the applicable Order Form and shall be deemed to have been given when delivered by hand (with written confirmation of receipt) or when received by the addressee if sent by certified or registered mail.
11.2 Nothing in this Agreement shall create, or be deemed to create, a partnership, the relationship of principal and agent, or of employer and employee between SeeThru and the Customer.
11.3 Neither Party shall assign, transfer, sub-contract, or in any other manner make over to any third party the benefit and/or burden of this Agreement without the prior written consent of the other, such consent not to be unreasonably withheld.
11.4 The Parties agree that, in the event that one or more of the provisions of this Agreement is found to be unlawful, invalid or otherwise unenforceable, that / those provisions shall be deemed severed from the remainder of this Agreement. The remainder of this Agreement shall be valid and enforceable.
11.5 The relationship between the Parties under this Agreement is and shall remain non-exclusive. Both parties are free to enter into similar relationships with other parties.