SAAS SERVICES AND SUPPORT – LAST UPDATED: 12/12/2023
1.1 Subject to the terms of this Agreement, SEED will use commercially reasonable efforts to provide Customer the Software (the “Service”) in accordance with the Service Level Agreement available at https://seedtalent.com/sla (the “SLA”). As part of the registration process, Customer will identify one or more users to be provided with administrative usernames and passwords for Customer’s SEED account who will receive access to Customer’s administrative dashboard (“Admin Users”). SEED reserves the right to refuse registration or cancel passwords it deems inappropriate.
1.2 Subject to the terms hereof, SEED will provide Customer with reasonable technical support services in accordance with the Support Terms available at https://seedtalent.com/supportterms.
1.3 Admin Users must be a Member when accessing the Services and/or Software. A “Member” is an individual who signs up to use the Services under the Seed Talent Terms of Service available at https://seedtalent.com/terms-of-service/ (the “Terms”) and acknowledges that they have read and understood the Seed Talent Privacy Policy available at https://seedtalent.com/privacy-policy/ (the “Privacy Policy”). The Terms are incorporated into this Agreement. Customer will ensure that Admin Users comply with the Terms and this Agreement when using the Service within the scope of their employment. Customer may only use the Services for Customer’s internal use. Customer may not resell, transfer access to, or otherwise monetize the Services without SEED’s written consent. Customer will not provide access to the Services to any third party. Customer will promptly and without undue delay notify SEED upon learning of any unauthorized use of the Services or any other breach of security related to the Services. Customer will have access to the Admin Users’ information that it collects in connection with the Admin Users’ access to the Services purchased by Customer, including without limitation data made available by Admin Users from Customer’s point-of-sale systems via application programming interfaces (APIs) (“Customer Data”). SEED may communicate to Admin Users about the Services via email, regular mail, and/or postings on the Services, including how to use the Services, customer support, integration, and compliance with the Agreement, provided that such communications comply with the terms of the DPA (defined below).
2.1 Customer will not, directly or indirectly, do any of the following and shall not permit any other party to: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); (ii) modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by SEED or authorized within the Services); (iii) use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third-party; or (iv) remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.3 Customer represents, warrants and covenants that Customer and Admin users will use the Services only in compliance with SEED’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations, including Cannabis Laws (as defined below). Customer hereby agrees to indemnify and hold harmless SEED against any damages, losses, liabilities, settlements and expenses (including, without limitation, costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. SEED has no obligation to monitor Customer’s use of the Services, SEED may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, telecommunications and networking equipment, servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3.1 Each party (the “Receiving Party”) understands that, under this Agreement, the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party) that the Receiving Party knows or reasonably should know is confidential to the Disclosing Party. Proprietary Information of SEED includes non-public information regarding features, functionality and performance of the Service. The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof (except with respect to any Proprietary Information that is a trade secret, for as long as it remains a trade secret) or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. A disclosure by the Receiving Party of any of the Disclosing Party’s Confidential Information (1) in response to a valid order by a court or other governmental body; (2) as otherwise required by law; or (3) necessary to establish the rights of either party under this Agreement shall not be considered to be a breach of this Agreement by the Receiving Party; provided, however, that Receiving Party provides prompt prior written notice thereof to the Disclosing Party to enable the Disclosing Party to seek a protective order or otherwise prevent the disclosure.
3.2 SEED shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any data that is based on or derived from the Customer Data, including without limitation Aggregate and Resultant Data, (c) any software, applications, inventions or other technology developed in connection with the Consulting Services or support, and (d) all intellectual property rights related to any of the foregoing.
3.3 Customer shall retain all rights in Customer Data. Customer grants SEED a non-exclusive, perpetual, irrevocable, sublicenseable and transferable license to use Customer Data to (a) provide the Services and (b) to create Resultant and Aggregate Data, as defined herein. “Resultant Data” is defined as data that arises from a Member’s interaction with Customer Data. SEED hereby grants Customer a limited, non-exclusive license to use such Resultant Data during the Term in connection with Customer’s use of the Services. Notwithstanding the foregoing, Customer acknowledges that the Resultant Data will include certifications that apply to Members and will be made available to third parties.
3.4 If required by applicable law and if SEED processes Personal Data, as that term is defined by such applicable law, on behalf of Customer pursuant to this Agreement, then SEED and Customer will use good faith efforts to execute a data processing agreement consistent with the requirements of applicable law and the terms of which will be incorporated into this Agreement.
3.5 Notwithstanding anything to the contrary, SEED shall have the right to, and be permitted to subcontract with various data providers and other third parties working for or with SEED, to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, Customer Data and data derived therefrom), and SEED will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and other products and services and for other development, security, diagnostic and corrective purposes in connection with the Services and other products and services, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business (”Aggregate Data”). For the avoidance of doubt, data input by Members into the Services will be governed by the Terms and Privacy Policy and will not be Customer’s Proprietary Information or otherwise considered owned by Customer. No rights or licenses are granted except as expressly set forth herein.
3.6 To the extent Customer provides recommendations, comments, guidance, advice, suggestions, ideas, feedback, reports, error identifications or other input or information related to the Services (“Feedback”), Customer hereby grants SEED a worldwide, perpetual, irrevocable, royalty-free, fully paid up, transferable, assignable, license, with full rights to sublicense, to use, modify, disclose, sell, transfer, distribute, create derivative works from and otherwise fully exploit such Feedback for any and all purposes without obligations of any kind, whether or not provided at SEED’s request and irrespective of any limitations relating to its use. Feedback is provided voluntarily. SEED is not required to hold any Feedback in confidence, pay compensation for any Feedback, implement or use any Feedback, or respond to any Feedback.
4.1 Customer will pay SEED the then applicable fees described in the Order Confirmation for the Services and Consulting Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the maximum number of users set forth on the Order Confirmation or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such users or usage at SEED’s then-current rates. and Customer agrees to pay the additional fees in the manner provided herein. SEED reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then current renewal term, upon thirty (30) days’ prior notice to Customer (which may be sent by email). If Customer believes that SEED has billed Customer incorrectly, Customer must contact SEED no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to SEED’s customer support department.
4.2 SEED may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by SEED thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services, the payments to be made hereunder or otherwise, other than U.S. taxes based on SEED’s net income.
5.1 Subject to earlier termination as provided below and except as expressly provided otherwise in the Order Confirmation, this Agreement is for the Initial Term as specified in the Order Confirmation and shall be automatically renewed for additional periods of one (1) year (collectively, the “Term”), unless either party provides written notice of its intent not to renew and continue this Agreement at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, a party may also terminate this Agreement upon thirty (30) days’ notice, if the other party materially breaches this Agreement and fails to cure the breach by the end of such 30-day cure period (except the cure period for nonpayment is five business days). Customer will pay in full for the Services and Consulting Services up to and including the last day on which the Services and Consulting Services are provided. Upon any termination, SEED will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days in its then-current format, but thereafter SEED may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6.1 Each party hereby represents and warrants to the other that: (a) it has the corporate right, power and authority to execute, deliver and perform this Agreement and to grant the rights and consummate the transactions contemplated hereby; and (b) this Agreement has been duly authorized, executed and delivered by such party, constitutes the legal, valid and binding obligation of such party and is enforceable against such party in accordance with its terms, except to the extent such enforceability may be limited by bankruptcy, reorganization, insolvency or similar laws of general applicability governing the enforcement of the rights of creditors or by the general principles of equity (regardless of whether considered in a proceeding at law or in equity)
4.2 SEED warrants to Customer that SEED shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Consulting Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by SEED, its cloud providers, or other third-parties, or because of other causes, events or reasons beyond SEED’s reasonable control, but SEED shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, SEED DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR WILL MEET CUSTOMER’S NEEDS OR REQUIREMENTS; NOR DOES SEED MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND CONSULTING SERVICES ARE PROVIDED “AS IS” AND SEED EXCLUDES AND DISCLAIMS ALL WARRANTIES, WHETHER STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, SEED AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR LOST PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND SEED’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO SEED FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT SEED HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THESE LIMITATIONS APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF THIS AGREEMENT OR ANY LIMITED REMEDY HEREUNDER.
In no event shall SEED be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by or results from any cause, event or circumstance beyond the reasonable control of SEED, including any due to the following force majeure events: (i) acts of God; (ii) flood, fire, earthquake or explosion, pandemic, epidemic; (iii) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest; (iv) government order, law, or actions, including shelter at home orders; (v) embargoes or blockades in effect on or after the date of this Agreement; (vi) national or regional emergency; (vii) strikes, labor stoppages or slowdowns, or other industrial disturbances; (viii) shortage of adequate power or transportation facilities; (ix) failure of service providers (including cloud service providers), licensors (including data licensors) or the Internet; and (x) other events beyond the reasonable control of SEED, whether or not similar or dissimilar to the foregoing.
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement and the rights hereunder are not assignable or transferable by Customer except with SEED’s prior written consent. All assignments of rights by Customer are prohibited under this clause, whether they are voluntary or involuntary, by contract, merger, consolidation, operation of law or otherwise. For purposes of this paragraph, a change of control is deemed an assignment of rights and “merger” refers to any merger in which Customer participates, regardless of whether it is the surviving or disappearing entity. SEED may transfer and assign any of its rights and obligations under this Agreement without consent, including to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, divestiture, or other business combination transaction. SEED may also subcontract its obligations hereunder to a third party, provided SEED remains responsible for the performance of this Agreement. Any attempted or actual assignment not in compliance with this Agreement is null and void. This Agreement shall be binding upon, and inure to the benefit of, the parties and their successors and permitted assigns. This Agreement is the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to such subject matter. The parties may amend this Agreement only by a written agreement signed by the parties that identifies itself as an amendment to this Agreement. The parties may waive a breach of this Agreement only by a writing executed by the party or parties against whom the waiver is sought to be enforced. No failure or delay (i) in exercising any right or remedy, or (ii) in requiring the satisfaction of any condition, (iii) under this Agreement, and no act, omission or course of dealing between the parties, operates as a waiver or estoppel of any right, remedy or condition. A waiver made in writing on one occasion is effective only in that instance and only for the purpose stated. A waiver once given is not to be construed as a waiver on any future occasion or against any other party. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind SEED in any respect whatsoever. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed (excluding bounce-backs and auto-replies), if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. The laws of the State of Illinois govern all matters arising out of or relating to this Agreement, without regard to any conflict of law principles applied therein. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly waived and excluded. In any action between the parties arising out of or relating to this Agreement, including, without limitation, any action seeking equitable relief, each party irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the state and federal courts located in Cook County, Illinois. SEED may use Customer’s name as part of a list of licensees and may refer to Customer in its advertising and marketing and investor materials. Customer also agrees to reasonably cooperate with SEED to serve as a reference account upon request. This Agreement has been negotiated by the respective parties hereto and their attorneys and the language hereof shall not be construed for or against any party. The titles and headings herein are for reference purposes only and shall not in any manner limit the construction of this Agreement, which shall be considered as a whole. As used in this Agreement, the words “include” and “including” and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by words “without limitation.” “Cannabis Law” means any state, local, or U.S. federal law, civil, criminal, or otherwise, that is directly or indirectly related to the cultivation, harvesting, production, processing, marketing, distribution, sale, transfer, possession, and use of cannabis, marijuana, or related substances or products containing cannabis, marijuana, or related substances that exists now or may exist in the future, including without limitation the prohibition on drug trafficking under the Controlled Substances Act (21 U.S.C. § 801, et seq.), the conspiracy statute under 18 U.S.C. § 846, the bar against aiding and abetting the conduct of an offense under 18 U.S.C. § 2, the bar against misprision of a felony (concealing another’s felonious conduct) under 18 U.S.C. § 4, the bar against being an accessory after the fact to criminal conduct under 18 U.S.C. § 3, and federal money laundering statutes under 18 U.S.C. §§ 1956, 1957, and 1960. EACH PARTY AGREES THAT THIS AGREEMENT’S INVALIDITY FOR PUBLIC POLICY REASONS AND/OR ITS VIOLATION OF ANY APPLICABLE CANNABIS LAWS IS NOT A VALID DEFENSE TO ANY DISPUTE OR CLAIM ARISING OUT OF THIS AGREEMENT. EACH PARTY EXPRESSLY WAIVES THE RIGHT TO PRESENT ANY DEFENSE RELATED TO THE ILLEGALITY OF CANNABIS AND AGREES THAT SUCH DEFENSE SHALL NOT BE ASSERTED, AND WILL NOT APPLY, IN ANY DISPUTE OR CLAIM ARISING OUT OF THIS AGREEMENT.
