STANDARD TERMS
These Standard Terms govern your access to and use of www.sigbee.com and your use of the SigBee Services. These Standard Terms are by and between SigBee Inc., a Delaware corporation ("SigBee"), and your organization or other legal entity (“you" or “your”) on whose behalf you are entering these Standard Terms. Capitalized terms not otherwise defined herein are described in Section 16 “Definitions”.
1. Right to Access and Use of Services. Subject to and conditioned on your payment of applicable fees and compliance with these Standard Terms and the appliable Order, SigBee hereby grants to you and your Authorized Users, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services for your internal business purposes. All rights not expressly granted to you are reserved by SigBee.
2. Usage Restrictions. In addition to any other limitations set forth in these Standard Terms and any Order, you agree not to (i) copy, download, modify or translate any software and/or database hosted as part of the Services in any manner not authorized by these Standard Terms; (ii) reverse engineer, decompile, or disassemble any software and/or database hosted as part of the Services, or otherwise attempt to discover the underlying source code of the Services; (iii) tamper with, bypass or alter the security features of the Services or any of the hosted infrastructure, (iv) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise provide any access to or use of the Services or any features or functionality of the Services to any person or entity other than your Authorized Users; (v) use the Services in violation of any law, regulation, or rule including for any illegal, obscene or threatening purpose; and (vi) use the Services or its contents for purposes of competitive analysis, the development of a competing product or service, or any purpose that is detrimental to SigBee.
3. Obligations; Data.
3.1 Your Obligations. Only Authorized Users may use the Services, and solely for your internal business purposes. All use of the Services by your Authorized Users must comply with these Standard Terms. Your Authorized Users will be granted access to the Services through individual usernames and passwords. You will ensure that each Authorized User uses a unique username and password and that such usernames and passwords are not shared. You shall promptly notify SigBee if any Authorized User’s username or password has been or is suspected of being lost, stolen or compromised. You shall implement appropriate security measures to safeguard your Access Credentials and you are solely responsible for any and all activity that occurs in connection with your Access Credentials. You must maintain all hardware, software and network connectivity needed to connect to the Services.
3.2 Your Data. You acknowledge and agree that SigBee may use Your Data to provide the Services to you and as otherwise set forth in these Standard Terms. By submitting or transmitting Your Data to the Services, you represent and warrant that you are the owner of, and/or have all necessary right and permissions to Your Data to permit SigBee to use the same in accordance with these Standard Terms without violating the rights of any third party. SigBee shall implement and maintain appropriate technical, physical, and organizational controls to secure the Services and to protect the security, confidentiality, and integrity of Your Data.
4. Ancillary Services.
4.1 Professional Services. SigBee may agree to provide you Professional Services as set forth in an Order, subject to these Standard Terms. You agree that you may not publish any Deliverable or to provide any Deliverable to any third party other than your employees, contractors, and advisors, except as specifically permitted in an Order.
4.2 Free Services. SigBee may make Services available to you specifying that the Services are provided free of charge, on a trial basis, and/or to be used at your own risk (“Free Services”). Notwithstanding any other provision of these Standard Terms, you acknowledge and agree that: (i) Free Services are made available without any support, maintenance, warranty, commitment to availability, security, or accuracy, or other related obligation of any kind under these Standard Terms, unless otherwise required by applicable law; (ii) Free Services may not include or allow access to all features and functionality available to paying customers; (iii) SigBee may terminate the use of a Free Services at any time, unless otherwise specified in writing, and SigBee will not be liable for such termination; and (iv) data, information, and content submitted to Free Services may be permanently lost, and SigBee will not be liable for such loss.
4.3 Additional Terms. Additional terms and conditions (the “Additional Terms”) may apply to specific products, services or features made available by SigBee on or through the Services. Additional Terms (as applicable) are hereby incorporated by this reference into these Standard Terms. In the event of a conflict between any Additional Terms and these Standard Terms, the Additional Terms shall prevail.
5. Fees; Payment; Taxes.
5.1 Fees. Fees for the SigBee Services are payable as set forth in the applicable Order Form (“Fees”). Unless otherwise noted on your Order Form, Services will be invoiced in advance of providing the Services and Professional Service will be invoiced on a time and materials basis monthly in arrears. SigBee may increase the Fees for any renewal term by providing you with notice of the impending increase in fees not less than forty-five (45) days prior to the commencement of such renewal term and the resulting increase in fees. Unless otherwise stated in your Order Form, all fees are non-refundable and non-cancellable.
5.2 Invoices. Invoices are due within thirty (30) days of receipt of the applicable invoice. If you dispute any charges, you must provide written notice to SigBee within thirty (30) days of the invoice date with a detailed explanation of the dispute. SigBee may suspend the SigBee Services or terminate these Standard Terms for non-payment by you, as set forth in Section 6. You will pay a late fee equal to one-and-one-half percent (1.5%) per month or the maximum amount allowed by law, if less, on all past due amounts. You are also liable for all costs of collection incurred by SigBee for past due sums, including without limitation, collection agency fees, reasonable attorneys’ fees, and court costs.
5.3 Taxes and Other Charges. All amounts payable by you are exclusive of applicable taxes and duties, including VAT and applicable sales tax. You shall be responsible for and shall pay all such taxes and indemnify SigBee from any liability thereon, provided that, in no event shall you be responsible for any state or federal income taxes imposed on SigBee’s income. If you are legally entitled to an exemption from any sales, use, or similar transaction tax, you are responsible for providing SigBee with legally sufficient tax exemption certificates for each taxing jurisdiction. If any deduction or withholding is required by law, you will notify SigBee and will pay SigBee any additional amounts necessary to ensure that the net amount of payment that SigBee receives, after any deduction and withholding, equals the amount of payment SigBee would have received if no deduction or withholding had been required.
6. Term & Termination; Suspension.
6.1 Term. Unless otherwise specified in the Order, the initial term of this Agreement will begin on the effective date of your Order and shall continue for the duration listed in the Order (the “Initial Term”), and thereafter shall automatically renew for additional periods of one (1) year unless either party provides written notice of its intention not to renew to the other party at least thirty (30) days prior to expiration of the then-current term (each a “Renewal Term,” and collectively together with the Initial Term, the “Term”). If the length of the Initial Term is not listed in the Order, it will be one (1) year from the Effective Date of the Order.
6.2 Termination for Breach. Either you or SigBee may terminate an Order or these Standard Terms, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach.
6.3 Termination or Suspension by SigBee. SigBee may, at its option, terminate these Standard Terms for cause or suspend the Services if: (i) SigBee reasonably believes that the Services are being used in violation of law or the terms of these Standard Terms; (ii) your use of the Services interferes with the normal operations of the Services or other customers’ use of the same; (iii) there is an attack on the Services or your server(s), your server is accessed or manipulated by a third party without your consent, or there is another event for which SigBee reasonably believes suspension of the Services is necessary to protect the SigBee network or SigBee's other customers; (iv) your payment of any invoiced amount is overdue and you fail to pay the overdue amount within ten (10) days of SigBee's written notice; (v) you breach any obligation relating to SigBee's (or its suppliers’) intellectual property rights; or (vi) you become bankrupt, insolvent, have a receiver appointed for any portion of your business, liquidate, cease to do business, or make a general assignment for the benefit of creditors. SigBee will endeavor to give you advance notice of pending suspension or termination, unless SigBee determines, in SigBee's reasonable commercial judgment, that an immediate suspension is necessary to protect SigBee, its customers, or others.
6.4 Effect of Termination. Upon termination of these Standard Terms: (i) you will cease using the SigBee Services; and (ii) each party shall return or destroy all Confidential Information in accordance with Section 7, provided that Confidential Information may continue to exist elsewhere on our system where (i) immediate deletion is not possible due to technical limitations (i.e. backup systems); or (ii) where immediate deletion would restrict our ability to investigate violations of these Standard Terms or illegal activity, comply with applicable law or a request by a law enforcement or judicial authority. Termination of these Standard Terms will not relieve a party from any accrued payment obligations. SigBee will not be liable to you for any claims or damages of any kind arising out of termination of these Standard Terms or suspension of SigBee Services in accordance with this Section 6.
7. Confidentiality. Each party, as a recipient (“Recipient”), agrees to use the disclosing party’s (“Discloser”) Confidential Information solely for the purposes of performing its obligations or exercising its rights under these Standard Terms. Recipient will not disclose Discloser’s Confidential Information to any third party other than its Authorized Recipients. As used herein, “Authorized Recipients” are a party’s and its affiliates’ officers, employees, agents and consultants who require access to the Confidential Information for the purpose set forth in these Standard Terms and who are bound by confidentiality obligations at least as stringent as those set forth herein. Recipient shall use commercially reasonable standards to protect the Confidential Information from disclosure using equal measures as it uses to protect its own Confidential Information of a similar nature. The obligations set forth in this Section 7 shall survive until three (3) years from the termination or expiration of these Standard Terms except with regard to trade secret information which shall be protected for the statutory period. Except as otherwise set forth in these Standard Terms each party shall use commercially reasonable efforts to return and/or destroy all Confidential Information in accordance with this Section 7. Notwithstanding, Recipient will not be obligated to render unrecoverable Confidential Information of the Discloser that is contained in an archived computer system backup. Any such retained Confidential Information will remain subject to this Section 7.
8. Intellectual Property Rights. The Services are owned by SigBee (and its licensors) and are protected by applicable intellectual property laws and regulations, including United States and international copyright laws. As between the parties hereto, SigBee retains all right, title and interest in and to the SigBee Services and any derivative works that are created and/or developed based, in whole or in part, on access to and use of the SigBee Services. Nothing herein shall operate to transfer or convey to you any rights in any SigBee Services and/or software hosted as part of the Services. You agree to promptly notify SigBee if you become aware of, or suspect any unauthorized, access, use or misuse of the SigBee Services. Similarly, you retain all right, title and interest in and to Your Data. To the extent you provide SigBee with any feedback, best practices, templates, systems, ideas, or technical improvement suggestions about the SigBee Services (“Feedback”), you acknowledge and agree that SigBee will be the owner of all such Feedback and may use and incorporate the Feedback into the SigBee Services without compensation or attribution to you. SigBee may monitor your use of the Services and collect and compile Aggregated Statistics. As between SigBee and you, all right, title, and interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are retained solely by SigBee. You acknowledge that SigBee may compile Aggregated Statistics based on Your Data input into the Services. You agree that SigBee may (i) make Aggregated Statistics publicly available in compliance with applicable law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable law; provided that such Aggregated Statistics do not identify you or your Confidential Information.
9. Representations and Warranties; Disclaimers; Reliance on Information.
9.1 TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SIGBEE DISCLAIMS ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES, DUTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, RELIABILITY OR AVAILABILITY, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, LACK OF VIRUSES, AND LACK OF NEGLIGENCE. SIGBEE DOES NOT REPRESENT THAT THE SIGBEE SERVICES WILL BE COMPLETELY SECURE OR WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF, OR ACCESS TO, THE SIGBEE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT DEFECTS IN THE SIGBEE SERVICES WILL BE CORRECTED. SIGBEE MAKES NO WARRANTY THAT (I) THE SIGBEE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTIONS, OR (II) THAT YOU WILL OBTAIN ANY SPECIFIC RESULTS OR PERFFORMANCE.
9.2 The SigBee Services may include content provided by third parties, including materials or data provided by other users, and third-party licensors. SigBee is not responsible, or liable to you or any third party, for the content or accuracy of any such content or results. SigBee does not warrant the accuracy, completeness, or usefulness of information provided by third parties. Any reliance you place on such information is strictly at your own risk.
10. LIMITED LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR OTHER DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST BUSINESS OR LOST CONTENT, RELATING TO THE SIGBEE SERVICES OR THE PROVISION OR FAILURE TO PROVIDE THE SIGBEE SERVICES OR SUPPORT THEREFOR, WHETHER OR NOT DUE TO A PARTY’S NEGLIGENCE. SIGBEE’S TOTAL AGGREGATE LIABILITY FOR ANY DAMAGES OR CLAIMS ARISING UNDER THIS AGREEMENT OR RELATED TO THE SIGBEE SERVICES SHALL IN NO EVENT EXCEED THE AMOUNT PAID BY YOU FOR ACCESS TO THE SIGBEE SERVICES UNDER THE APPLICABLE ORDER IN THE TWELVE (12) MONTH PERIOD BEFORE THE CLAIM AROSE. THE FOREGOING LIMITATIONS AND DISCLAIMERS APPLY TO DAMAGES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY (WHETHER FOR BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
11. Indemnification.
11.1 By SigBee. SigBee will indemnify, defend and hold you and your Authorized Users harmless against any losses, damages, expenses or liabilities arising from claims that your use of the SigBee Services infringes or misappropriates the intellectual property rights of a third party; provided that, SigBee shall not be required to indemnify you to the extent that the claim was caused by Your Data, your use of the SigBee Services in violation of these Standard Terms, or due to your unauthorized modifications or combinations of the SigBee Services with and into other technologies or services without SigBee’s written consent. If SigBee is obligated to indemnify you under this Section 11 or if it reasonably believes it may have liability under this Section 11, SigBee may, in addition to its other obligations hereunder: (i) obtain for you the right to continue using the SigBee Services on a non-infringing basis; or (ii) modify the SigBee Services so they are no longer infringing but of equivalent or better functionality, performance and interoperability. If neither of the foregoing options are commercially feasible, SigBee may discontinue the provisioning of the SigBee Services; provided that, it will issue you a pro rata refund or credit for the unused portion of the SigBee Services.
11.2 By You. You will indemnify, defend and hold SigBee harmless against any losses, damages, expenses or liabilities arising from your or your Authorized User’s use of the SigBee Services, including without limitation the violation of these Standard Terms, or any misappropriation or infringement of intellectual property rights or other claims arising from Your Data.
11.3 Process. A party seeking indemnity (an indemnified party) must give the indemnifying party prompt written notice of any claim for indemnification under this Section 11; provided that, the failure or delay in doing so will not excuse an indemnifying party of its indemnification obligations except to the extent its ability to defend the claim is materially prejudiced by such failure or delay. An indemnified party shall thereafter have the sole right to control the investigation, defense, and settlement of the claim at its sole cost and expense, provided that any settlement unconditionally releases the indemnified party of all liability and does not make any admissions on behalf of the indemnified party or include payment of any amounts by the indemnified party. An indemnified party may retain counsel to represent it on a non-controlling basis at its own cost and expense. An indemnified party shall reasonably cooperate with the indemnifying party in the investigation, trial and defense of such claim and any appeal arising therefrom at the indemnifying party’s expense.
12. Third Party Products. SigBee may from time to time make Third-Party Products available to you. For purposes of this Agreement, such Third-Party Products are subject to their own terms and conditions and flow through provisions, as applicable. If you do not agree to abide by the applicable terms for any such Third-Party Products, then you should not install or use such Third-Party Products. Third Party Products are not SigBee Services and, as between the parties, SigBee has no liability with respect to your procurement or use of Third-Party Products.
13. Export Regulation. You agree to abide by and to conform to any and all export regulations in force during these Standard Terms that are applicable to you or the Services provided, including but not limited to any export rules and regulations of the United States of America. You understand that these regulations may prohibit the export or re-export of Documentation, and any information or technical data related to the Services. The Services and the underlying information and technology may not be accessed, downloaded, or otherwise exported or re-exported (i) into (or to a national or resident of) Cuba, Libya, North Korea, Iran, Sudan, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders.
14. Modifications. SigBee reserves the right to change or modify the terms of these Standard Terms upon written notice to you. All such changes shall be effective immediately; provided, however, for existing customers, such modified Standard Terms, unless otherwise stated in an Order, shall be effective upon the later of (i) upon the renewal of the subscription term for any subscription-based Services or (ii) thirty (30) days after posting with respect to all other Services. If any changes to these Standard Terms are unacceptable to you, you may terminate the Services upon renewal by providing at least thirty (30) days’ written notice of termination to SigBee. Continued use of the Services following the effective date of any changes constitutes your acceptance of the changes but does not affect the foregoing right of termination. For purpose of this Section 14, the posting of an updated copy of these Standard Terms to the Services shall constitute written notice of the change(s) to these Standard Terms.
15. Miscellaneous.
15.1 Notice. Except as otherwise provided herein, notices under these Standard Terms by you to SigBee will be deemed to be sufficiently given, effective on the date received, when delivered personally or by overnight express, or nationally recognized courier services, or three (3) business days after mailing when sent by certified or registered mail, postage prepaid. You consent to receive from SigBee all communications including notices, agreements, legally required disclosures or other information in connection with the Services electronically. SigBee may provide such notices by posting them on the Services or at the email address you provided to SigBee.
15.2 Entire Agreement. The Order together with these Standard Terms and any other terms and conditions incorporated into these Standard Terms by reference constitutes the complete agreement between SigBee and you regarding the SigBee Services and supersedes all previous communications between the parties relating to the subject matter herein.
15.3 Assignment. You may not assign these Standard Terms or the rights granted hereunder without SigBee’s prior written consent, and any such assignment without consent is void.
15.4 Governing Law; Jurisdiction. These Standard Terms shall be governed by the laws of the State of Tennessee without reference to its conflicts of law principles or your state or country of residence. Each party hereby consents to the exclusive personal jurisdiction and venue of the federal and state courts located in Davidson County, State of Tennessee, United States of America, and you consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. You agree that any claim arising out of or related to these Standard Terms must be brought within one (1) year after the date it first accrued. If any action, suit, or legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of or related to these Standard Terms, the prevailing party shall be entitled to recover its reasonable attorneys' fees and court costs from the non-prevailing party.
15.5 Equitable Relief. Each party acknowledges that a breach by a party of Section 7 (Confidentiality) or Section 8 (Intellectual Property Rights), may cause the non-breaching party irreparable damages, for which an award of damages would not be adequate compensation and agrees that, in the event of such breach or threatened breach, the non-breaching party will be entitled to seek equitable relief, including a restraining order, injunctive relief, specific performance, and any other relief that may be available from any court, in addition to any other remedy to which the non-breaching party may be entitled at law or in equity. Such remedies shall not be deemed to be exclusive but shall be in addition to all other remedies available at law or in equity, subject to any express exclusions or limitations in these Standard Terms to the contrary.
15.6 Promotional Activities. If you are signing on behalf of an entity, you agree that SigBee may use your name and logo to identify you as a customer of SigBee on our website, and as a part of a general list of our customers for use in our corporate, promotional, and marketing materials. You agree that we may issue a press release identifying you as a customer and describe the nature of the services to be provided. The content of any press release using your name will be subject to your prior approval, which will not be unreasonably withheld. SigBee’s use of your name and logo does not create any ownership right therein and all rights not granted to SigBee are reserved by you.
15.7General Terms. Except for payment obligations, neither party shall be held responsible for any delay or failure in its performance to the extent that such delay or failure is caused by causes beyond its reasonable control. If any part of these Standard Terms is found unenforceable by a court of competent jurisdiction, such provision(s) will be ineffective to the extent of the court’s ruling and the remainder of these Standard Terms will remain in full force and effect. SigBee’s failure to enforce any rights hereunder, irrespective of the length of time for which such failure continues, shall not constitute a waiver of those or any other rights. The waiver by a party of any breach of any provision of these Standard Terms will not operate or be construed as a waiver of any subsequent breach. The parties' relationship is that of independent contractors. Neither party is an agent for the other, nordoes either party have the right to bind the other to any agreement with a third party. The captions used in these Standard Terms are for convenience only and are not binding.
16. Definitions. Terms not otherwise defined herein shall have the following meanings:
“Access Credentials” means the user identification name and password and/or other access keys or controls for the Services.
“Aggregated Statistics” means data and information related to Customer’s use of the SigBee Services that is used by SigBee in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Software.
“Authorized Users” means individuals authorized by you to use the Services solely on your behalf, which may include, employees, and contractors but no other third parties without SigBee’s prior written consent.
“Confidential Information” means any proprietary information, software, personal information, data or know-how of the Discloser that is disclosed under these Standard Terms which is marked as confidential, or which a reasonable person would understand to be confidential based on the context of the disclosure or the nature of the information. For clarity, the Services and Documentation shall be SigBee’s Confidential Information and Your Data shall be your Confidential Information except to the extent that it has been anonymized and aggregated by SigBee and is no longer be attributable to you or any Authorized User. Confidential Information does not include information which the Recipient may demonstrate through written evidence: (i) was already known to the Recipient prior to the time that it was disclosed by the Discloser; (ii) is or has entered the public domain through no breach of these Standard Terms by Recipient; (iii) has rightfully been received by Recipient from a third party without any breach of these Standard Terms; (iv) was approved for release by the written consent of the Discloser; (v) was independently developed by the Recipient without use of the Discloser’s Confidential Information; or (vi) was required to be disclosed pursuant to the order of a court or governmental agency of competent jurisdiction provided that the Discloser has, if permitted by law, been given reasonable notice of the order and the opportunity to contest the disclosure and any such disclosure is limited strictly to the Confidential Information which is the subject of such order.
“Documentation” means user manuals, online help files, technical manuals, and other materials published by SigBee which describe the Services and its uses, features, specifications, and/or technical requirements.
“Order” means the ordering document pursuant to which you subscribe to or purchase the SigBee Services. The Order will include a description of the specific services purchased, the associated cost, quantity, and other similar terms.
“Professional Services” means implementation, configuration, integration, training, advisory, engineering, and other professional services related to the Services that are specified in an Order or statement of work.
“SigBee Services” means the Services and the Professional Services provided by SigBee.
“Services” means the SigBee software-as-a-service platform provided to you pursuant to an Order and these Standard Terms, which provides tools to reduce staff turnover and burnout and to improve staff performance.
“Term” means the period of authorized access and use of Services as set forth in an Order.
“Third-Party Products” means any products provided by third parties, such as open-source software or other software, that may be used with or incorporated into the Services.
“Your Data” means any data, content, or other information transmitted to the Services by your Authorized Users.