(a) PURCHASE AND PROVISION OF SUBSCRIPTION SERVICE.  Clear Seas will supply the Subscription Service to Customer and Customer will receive, accept, and pay for the Subscription Service, all on the terms and conditions set out in the Agreement.

LICENSE AND LIMITATIONS.

(a) Clear Seas grants to Customer a license to access and use the Subscription Service and its components solely for Customer’s internal business purposes.

(b) Limitations on Use. Notwithstanding anything else in the Agreement to the contrary, the following restrictions and limitations apply.

(i) Customer will not, and will ensure that its officers, employees and agents do not, use the Subscription Service (or any part of it) for any unlawful purpose.

(ii) Customer may not access the Subscription Service if Customer is or becomes a competitor of Clear Seas in the market for competitive intelligence and/or market research.

(iii) Other than use in accordance with the Agreement, Customer shall not copy any component of the Subscription Service.

(iv)Customer shall not distribute, disassemble, modify, upgrade, enhance, alter, reverse engineer, de-compile, or otherwise change (including the creation of derivative works based on) any element of the Subscription Service.

(v) Customer will use the Subscription Service for Customer’s own internal business only. Customer will not sublicense, rent, transfer, use for the benefit of others (whether in a service bureau environment or otherwise), or grant any rights in the Subscription Service or any part thereof in any form to any third party without the prior written consent of Clear Seas.

(vi) Customer will not use, or permit to be used, any part of the Subscription Service in connection with any time-sharing arrangement.

(vii) Customer will not, without the express advance written permission of Clear Seas, use the Subscription Service for the purpose of monitoring the Subscription Service’s availability, performance or functionality, or for any other benchmarking or competitive purposes.

(viii) Customer will observe any limitations on use contained in the order form or similar document.  Such limitations might include (but are not limited to) concurrent use, named-user, seat, volume, access time, and or other license metrics.

(c) Customer will:

(i) Take all reasonable steps to prevent any unauthorized access to the Subscription Service and to ensure the non-disclosure and confidentiality of the Subscription Service;

(ii) Ensure that it and its officers, employees and agents take all reasonable steps to prevent any unauthorized access to the Subscription Service and do not disclose or copy any part of the Subscription Service;

(iii) Not transfer, assign, or deal in the Subscription Service or Customer’s rights under the Agreement;

(iv) Maintain all copyright and other proprietary notices associated with the Subscription Service.

(d) If Clear Seas is required by a licensor to remove any content from the Subscription Service, or if Clear Seas becomes aware that any content in the Subscription Service might violate applicable law or third-party rights, Clear Seas may notify Customer of such circumstances and Customer will then promptly return or destroy any such part of the Subscription Service that is in Customer’s possession or control.

Customer Support.

(a) During the Term, Clear Seas will provide to Customer Clear Seas’ then-current support services (such services being “Support Services”).

(b) Support Services do  not include services that are required in consequence of:

(i) Misuse or abuse of the Subscription Service;

(ii) Failure to use the Subscription Service in accordance with the documentation provided by Clear Seas; or

(iii) Unauthorized attempts to repair, replace, modify or maintain the Subscription Service by persons other than Clear Seas or its authorized Subscription Service providers.

Fees and Payment.

(a) Customer will pay to Clear Seas the Subscription Service Fee in advance, as specified on the applicable order document.

(b) Any other amounts billed in addition to the Subscription Service Fee are due within 30 days after receiving Clear Seas’ monthly invoice.

(c) If Customer fails to pay any amount when due, and Customer’s default continues for ten (10) days after written notice thereof from Clear Seas, all sums unpaid shall become immediately due and payable, and Clear Seas may without prejudice to its other rights or remedies under the Agreement or at law or in equity, suspend any services provided under the Agreement until Clear Seas is fully paid.

Warranty.

(a) Clear Seas will use commercially reasonable efforts to make available the Subscription Service online (at the outermost point on Clear Seas’ connection to the public Internet) and otherwise as expressly provided in the then-current documentation for the Subscription Service.

(b) Except as expressly provided in Section 5(a), Clear Seas (i) MAKES NO WARRANTY WHATSOEVER; and (ii) EXPRESSLY DISCLAIMS ANY WARRANTY WITH RESPECT TO MERCHANTABILITY, FITNESS FOR ANY PURPOSE, NON-INFRINGEMENT, OR NON-INTERFERENCE.

(c) To the extent that Clear Seas provides access to information provided by other sources, Clear Seas accepts no liability for – and makes no warranties, express or implied, with respect – to the content thereof.

(d) Customer is responsible for all use of the Subscription Service using any usernames or passwords registered by or allocated to Customer, whether or not use is made by Customer or someone else using  the username and password and whether use is made through the Clear Seas website or the customer’s own server.

Limitation of Liability

(a) CLEAR SEAS WILL NOT BE LIABLE UNDER THIS AGREEMENT OR OTHERWISE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, STATUTORY, PUNITIVE, OR INDIRECT DAMAGES AND WILL NOT BE LIABLE FOR ANY AMOUNT GREATER THAN THE AMOUNT PAID FOR THE SPECIFIC ELEMENTS OF THE SERVICE THAT GAVE RISE TO THE CLAIM.  THESE LIMITATIONS APPLY NOTWITHSTANDING THAT CLEAR SEAS KNEW, OR SHOULD HAVE KNOWN, OF THE POSSIBILITY OF A PARTICULAR KIND OF DAMAGES AND NOTWITHSTANDING THAT ANY LIMITATION CAUSES A REMEDY TO FAIL OF ITS ESSENTIAL PURPOSE.

Intellectual Property and Confidentiality.

(a) Customer acknowledges that, as between Clear Seas and Customer, all intellectual property rights and all other rights in the Subscription Service and each and every component thereof, belong to Clear Seas or its licensors.  As between Clear Seas and Customer, title to, and all rights in, the Subscription Service, any updates or modifications thereto (whether made by Clear Seas, by or on behalf of Customer or otherwise), any copies thereof, in whole or in part, and all related intellectual property rights therein shall at all times remain with Clear Seas, its licensors and/or its suppliers, as applicable.  Customer will maintain all information about, related to, or describing, the Subscription Service and/or this agreement in strict confidence and will refrain from disclosing the same to any third party, except to the extent that observation by third parties is necessary in the course of the ordinary utilization of the Subscription Service as contemplated by the Agreement.

(b) Clear Seas shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the Subscription Service any suggestions, enhancement requests, recommendations or other feedback provided by the Customer, including its individual users, relation to the operation of and features of the Subscription Service.

(c) Clear Seas reserves the right to respond as Clear Seas deems necessary to any inquiry, investigation, or other request by any governmental agency, including, but not limited to, law enforcement, as and if requested or ordered to do so.  Such responses may include positional or other information collected by Clear Seas under the Agreement.

Term and Termination.

(a) The term of the Agreement shall begin on the  date stated in the online or other order form and run for the period stated in the online or other order form  (the “Initial Term”) unless terminated by Clear Seas as permitted by the Agreement and will automatically renew for an additional 12 month period (each such period, and any additional renewal period, a “Renewal Term;” the Initial Term and any Renewal Terms being the “Term”) unless terminated by Customer by written notice to Clear Seas not less than 90 days prior to the end of the then-current Term.  The per unit Subscription Service Fee for a similar level of service during any Renewal Term shall be the same as the prior term unless Clear Seas gives written notice to Customer of a price increase within 120 days before the end of such prior term, in which case any pricing increase shall be effective from renewal and thereafter.

(b) Clear Seas may terminate the Agreement if Customer:

(i) breaches any provision of the Agreement;

(ii) fails to make any payment due to Clear Seas; or

(iii) liquidates, or begins to liquidate, its business, becomes insolvent, is or becomes unable to pay its debts as they become due, becomes a debtor or is otherwise the object of any bankruptcy or similar proceeding, or a receiver is appointed for the assets of Customer.

(c) On termination of the Agreement, Customer will remain liable for payment of any charges that become due for payment before or after termination, immediately cease to use the Subscription Service and delete or destroy all copies of the Subscription Service or components thereof in Customer’s possession or control.

US GOVERNMENT USERS. The Subscription Service is a “Commercial Item,” as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 and 48 C.F.R. §§227.7202-1 through 227.7202-4, as applicable, the Software and User Documentation are being provided to U.S. Government end users (1) only as a Commercial Item, and (2) with only those rights as are granted to all other end users pursuant to the terms and conditions of the Agreement.

TAXES. Customer is responsible for payment of all applicable sales, use, consumption, VAT, GST and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Clear Seas’ income) arising from the payment of fees hereunder.  Customer will make all payments without reduction for any withholding taxes, which taxes shall be the responsibility solely of Customer, and Customer will provide to Clear Seas such evidence as Clear Seas reasonably requests to establish that such taxes have been paid.

MISCELLANEOUS.

(a)  If any provision of the Agreement is invalid or unenforceable, the remaining provisions will remain in force and effect.

(b) If Clear Seas waives any default or breach of the Agreement, this will not constitute a waiver of any other or subsequent default or breach.  No waiver will be effective unless made in writing.

(c) Customer may not assign or transfer its rights and obligations under the Agreement without the prior written consent of Clear Seas. Clear Seas may assign or otherwise transfer its rights under the Agreement.

(d) Neither party will be liable for any delay or failure in the performance of its obligations under the Agreement, except for payment obligations, if such delay or failure is due to any cause outside its reasonable control including but not limited to acts of God, natural disaster, riot, malicious damage, fire or acts of any governmental authority.

(e) This Agreement is between Clear Seas and Customer.  No third party beneficiaries are intended or permitted.  In connection with the Agreement each party is an independent contractor and as such does not have any authority to bind or commit the other.  Nothing herein shall be deemed or construed to create a joint venture, partnership or agency relationship between the parties for any purpose.

(f) The provisions of Sections 2(b), 2(c)(iii), 2(c)(iv), 2(d), 4, 5(b), 6, 7, 8, 9, 10, and 11 will survive indefinitely the termination of the Agreement for any reason.

(g) This Agreement shall be governed by and construed under the laws of the State of Michigan without regard to the conflicts of law provisions thereof.

(h) Any claim, suit, or action arising out of the Agreement must be brought solely in the courts of the State of Michigan sitting in Oakland County or in the United States District Court for the Eastern District of Michigan, southern Division and each party irrevocably consents to the exclusive jurisdiction of, and venue in, such courts.

(i)  Any notice required or permitted to be given under the Agreement must be in writing and will be deemed effective (a) if given by personal delivery, upon such personal delivery, (b) if given by nationally-recognized courier or mail service (in either case that has realtime or near-realtime tracking), at the time that the notice is delivered (or an attempt is made to deliver the notice, regardless of whether refused) to the receiver’s premises according to the tracking records of the courier or mail service, or (c) if by e-mail, when sent, provided that sender receives no indication within four hours after sending that the e-mail message failed to reach the receiver.  If a receiver knowingly or intentionally renders an e-mail system incapable of receiving notice by that means, any notice sent by e-mail respectively will nevertheless be effective upon sending.  The address for notices to Clear Seas are: 2401 W Big Beaver, #700, Troy, MI 48084.  Clear Seas may use any address that it has on file for Customer.

(j)  The Agreement, including all attachments and documents that form a part of it, represents the entire agreement between the parties and expressly supersedes and cancels any other agreements, whether oral or written, on the subjects herein.  Each party acknowledges that it is not entering into the Agreement on the basis of any representations not expressly contained in the Agreement.  Other than as specified in the Agreement, the Agreement may only be supplemented or modified by an amendment in a writing executed by the party against whom enforcement is sought.  When a non-Clear-Seas order document is used to place an order or a Clear-Seas affiliate or representative places an order on behalf of Customer, no additional or conflicting term in a purchase order or other document shall have any effect.