Last Updated: June 15, 2022

This Master SaaS Subscription Agreement (this “Agreement”) describes the terms and conditions pursuant to which WatchSpotter LLC (“Company”) will provide Customer access to the Citizen Science Platform (as defined below).

BY EITHER (1) CLICKING A BOX INDICATING ACCEPTANCE, OR (2) SIGNING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, CUSTOMER AGREES TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, THEN SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, THEN SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PLATFORM.

1. Certain Definitions.

1.1 “Authorized Purpose” means to track and manage the location information generated by Devices.

1.2 “Authorized User” means Customer personnel who need to access the Platform for the Authorized Purpose and who are provided with Platform account logins by Customer’s account administrator.

1.3 “Customer Data” means data submitted to the Platform by Customer and its Devices through the Platform’s application programming and user interfaces.

1.4 “Device” means a device owned or controlled by Customer that implements Company’s proprietary cloud location-over-cellular technology.

1.5 “Documentation” means any manuals, instructions or other documents or materials that Company provides or makes available to Customer that describe the functionality, features or requirements of the Platform.

1.6 “Effective Date” means the date on which Customer accepted this Agreement.

1.7 “Order Form” means a mutually agreed and executed order form referencing and incorporating the terms of this Agreement.

1.8 “Personal Data” means any information that, individually or in combination, does or can identify a specific individual or by from which a specific individual may be identified, contacted or located.

1.9 “Platform” means Company’s proprietary “WatchSpotter” web and mobile app platform for collecting and analyzing Citizen Science data.

2. Services.

2.1 Grant.  Subject to the terms and conditions of this Agreement, Company hereby grants to Customer a nonexclusive and nontrans­ferable right during the Term to allow the Authorized Users to access and use the Platform for the Authorized Purpose. Customer shall not allow access to the Platform by any person other than an Authorized User or for use other than as reasonably necessary for the Authorized Purpose.

2.2 Reservation of Rights.  Customer acknowledges that it is only granted access to the Platform for the Authorized Purpose during the Term in accordance with Section 2.1 and agrees that it shall not use the Platform except as permitted under Section 2.1.  Customer acknowledges that Company retains title to the Platform.  Company hereby reserves all rights to the Platform or any copyrights, patents, trademarks or other intellectual property rights embodied or used in connection therewith, except for the rights expressly granted herein.

3. Data Protection.

3.1 Safeguards. The Documentation specifies the administrative, physical, technical and other safeguards applied to Customer Data on the Services, and describes other aspects of system management applicable to the Platform.

3.2 Customer Responsibility. Customer has and will retain sole responsibility for all Customer Data and all information, instructions and material provided by or on behalf on Customer or any Authorized User in connection with the Platform. Customer also acknowledges that it has reviewed Company’s Privacy Policy here, which is hereby incorporated by this reference into, and made a part of, this Agreement.

3.3 Use of Customer Data. Customer Data is considered Customer’s Confidential Information. Company’s agrees that Company may use any Customer Data and other data made available to Company by or on behalf of Customer in accordance with WatchSpotter’s Privacy Policy, including (i) to operate the Platform and perform its obligations hereunder; and (ii) to generate aggregated, anonymized datasets. Customer Data does not include such aggregated, anonymized datasets or any other data or other routines generated by Company through any automated data analysis, processing or other normal operations of the Platform (collectively, “Usage Data’). As between the parties, Company owns all right, title an interest in and to the Usage Data, and may use and disclose Usage Data without restriction. Company may remove or restrict access to Customer Data, including if Company believes such data may violate applicable law, if the source of such data becomes unavailable, or if a third party brings or threatens legal action against Company or a third party. Customer represents that it has obtained necessary permissions or approvals as may be necessary for Customer to submit such Customer Data to Company in connection with the delivery of the Platform, that there is no software or materials subject to an “open source license” (as that term is commonly understood) included in the Customer Data, and to comply with all laws applicable to Customer’s performance under this Agreement.

4. Subscription Fee.

4.1 Payment of Fees.  In consideration of the access granted pursuant to Section 2.1, Customer shall pay Company all fees of the type, amount and payment schedule set forth in the Order Form or otherwise selected by Customer when signing up for a subscription to the Platform.  All fees are denominated in United States Dollars and are non-refundable. Any amounts not paid within 30 days will be subject to interest of 1.5% per month, which interest will be imme­di­­ately due and payable.

4.2 Authorization. You authorize Company to charge all sums for the orders that you make as described in this Agreement or published by Company, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, Company may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.

4.3 Subscriptions. Your Platform subscription may include automatically recurring payments for periodic charges (“Subscription Service”). If you activate a Subscription Service, you authorize Company to periodically charge, on a going-forward basis and until cancellation of either the recurring payments or your account, all accrued sums on or before the payment due date for the accrued sums. The “Subscription Billing Date” is the date when you purchase your first subscription to the Service. Your account will be charged automatically on the Subscription Billing Date all applicable fees and taxes for the next subscription period. The subscription will continue unless and until you cancel your subscription, or we terminate it. You must cancel your subscription before it renews in order to avoid billing of the next periodic Subscription Fee to your account. We will bill the periodic Subscription Fee to the payment method you provide to us during registration (or to a different payment method if you change your payment information). For any billing related questions or to request an account cancellation, please reach out to support@www.watchspotterpro.com and include “Billing” in the subject line. Please include your company name, your name, and email, and your invoice or receipt number or call +1 772-444-1001.

4.4 Delinquent Accounts. Company may suspend or terminate access to the Platform for any account for which any amount is due but unpaid. In addition to the amount due for the Platform, a delinquent account will be charged with fees or charges that are incidental to any chargeback or collection of the unpaid amount, including collection fees.

4.5 Taxes.  All charges and fees provided for in this Agree­ment are exclusive of any taxes, duties, or similar charges imposed by any government.  Customer shall pay or reimburse Company for all federal, state, dominion, provincial, or local sales, use, personal property, excise or other taxes, fees, or duties arising out of this Agreement or the transactions contemplated by this Agreement (other than taxes on the net income of Company).

5. SLA, Limited Warranty and Limitation of Liability.

5.1 Platform Performance. Company will use commercially reasonable efforts to (i) make the Platform available to Customer at least 99% of the time, excluding scheduled maintenance, measured on a rolling 6-month basis; (ii) prepare and implement a disaster recovery plan  intended to restore service within 24 hours after any interruption of the Platform; and (iii) implement commercially reasonable measures to secure the Platform against unauthorized access to or alteration of Customer data; provided that Customer is solely responsible for maintaining the security and operability of the its systems and ensuring timely transmission of, and the accuracy, quality, integrity, and reliability of, all Customer data.

5.2 Authority. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

5.3 Company Warranties. Company warrants, that during the Term, the Platform will perform materially in accordance with the applicable documentation. For any breach of this warranty, Customer’s exclusive remedy is termination pursuant to Section 8.2 below.

5.4 Disclaimer.  EXCEPT AS EXPRESSLY PROVIDED IN SECTION 5.3, COMPANY MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. COMPANY HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

5.5 Limitation of Liability.  IN NO EVENT WILL COMPANY BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUES, LOSS OF USE, BUSINESS INTERRUPTION, LOSS OF DATA, COST OF COVER OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ALLEGED AS A BREACH OF CONTRACT OR TORTIOUS CONDUCT, INCLUDING NEGLIGENCE, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  IN NO EVENT WILL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE SUBSCRIPTION FEES PAID BY CUSTOMER TO COMPANY UNDER THIS AGREEMENTIN THE TWELVE MONTHS PRECEDING THE FIRST INCINDENT OUT OF WHICH LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY.

5.6 Allocation of Risk. The provisions of this Section 5 allocate risks under this Agreement between Customer and Company.  Company’s pricing of the Platform reflects this allocation of risks and limitation of liability.

6. Indemnification for Infringement.

6.1 Indemnity.  Company shall, at its expense, defend or settle any claim, action or allegation brought against Customer that the Platform infringes any copyright or trade secret of any third party and shall pay any final judgments awarded or settlements entered into; provided that Customer (i) gives prompt written notice to Company of any such claim, action or allegation of infringement, (ii) gives the Company the assistance, authority and information as Company may reasonably require to settle or oppose such claims, and (iii) gives Company the authority to proceed as contemplated herein.  Company will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or alle­gation, except with prior written consent of Company.

6.2 Options.  In the event any such infringement, claim, action or allegation is brought or threatened, Company may, at its sole option and expense: (a) procure for Customer the right to continue use of the Platform or infringing part thereof; or (b) modify or amend the Platform or infringing part thereof, or replace the Platform or infringing part thereof with other software having substantially the same or better capabilities; or, (c) if neither of the foregoing is commercially practicable, terminate this Agreement and repay to Customer a pro rata portion, if any, of any pre-paid subscription fees.  Company and Custo­mer will then be released from any further obligation to the other under this Agree­ment, except for the obligations of indem­nification provided for above and such other obligations that survive termination.

6.3 Exclusions  Company shall have no liability hereunder if the actual or alleged infringement results from (a) Customer’s breach of this Agreement, (b) any modification, alteration or addition made to the Platform or any use thereof, including any combination of the Platform with software or other materials not provided by Company, (c)  Customer’s failure to use any corrections or modifications made available by Company that would not result in any material loss of functionality, (d) use of the Platform in a manner or in connection with a product or data not contemplated by this Agreement, or (e) any settlements entered into by Customer or costs incurred by Customer for such claim that are not pre-approved by Company in writing.

6.4 Limitation. THIS SECTION 6 STATES THE ENTIRE LIABILITY OF COMPANY WITH RESPECT TO INFRINGEMENT OF ANY PATENT, COPYRIGHT, TRADE SECRET OR OTHER PROPRIETARY RIGHT.

7. Confidential Information.

7.1 Non-Use and Non-Disclosure.  Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement.  Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees who do not have a need to know. Notwithstanding, a receiving party may disclose such Confidential Information that is required by law to be disclosed if the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure. Neither party shall reverse engineer, disassemble or decompile any prototypes, software or other tangible objects which embody the other party’s Confidential Information and which are provided to the party hereunder.

7.2 Maintenance of Confidentiality.  Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party.  Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees.  Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party.  Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.

7.3 Return of Materials.  Upon the termination or expiration of this Agreement, each party shall deliver to the other party all of such other party’s Confidential Information that such party may have in its possession or control.

8. Term and Termination.

8.1 Term.  This Agreement will take effect on the Effective Date and will remain in force for the period set forth on the applicable Order Form or the subscription length selected by Customer when signing up for a subscription to the Platform (the “Initial Term”).  Except as otherwise set forth on an Order Form, after the Initial Term, this Agreement will automatically renew on a month-to-month basis (the “Renewal Term”).  Collectively, the Initial Term and Renewal Terms are the “Term.”

8.2 Termination Events. Either party may terminate this Agreement or any Order Form by written notice if the other party is in material breach of this Agreement or such Order, where such material breach is not cured within 30 days after written notice of such breach from the non-breaching party.  If Customer fails to pay within 15 days after written notice of nonpayment of any amounts owed to Company, such nonpayment will be deemed a material breach.

8.3 Survival and Termination Obligations.  Immediately upon expiration or termination of this Agreement for any reason whatsoever, Customer will cease all access to and use of the Platform.  In addition, no later than thirty (30) days after the date of termination or discontinuance of this Agreement for any reason whatsoever, Customer shall return all/any Confidential Information of the Company in its possession that is in tangible form.  Customer shall furnish Company with a certificate signed by an executive officer of Customer verifying that the same has been done.  Sections 1,2.2, 5.2, 5.3, 6, 7, 8.3 and 9 shall survive any termination or expiration of this Agreement.

9. Miscellaneous.

9.1 Assignment. Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntary or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of Company. Company may assign this Agreement without consent in connection with its reorganization, reincorporation, sale of assets, merger or consolidation, without the prior written consent of Customer.  Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.  Any assignment in violation of this Section 9.1shall be null and void.

9.2 Notices. Any notice required or permitted under the terms of this Agreement or required by law must be in writ­ing and must be (a) delivered in person, (b) sent by first class registered mail, or air mail, as appropriate, or (c) sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth in the first paragraph of this Agreement.  Either party may change its address for notice by notice to the other party given in accordance with this Section.  Notices will be consi­dered to have been given at the time of actual delivery in person, three (3) business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

9.3 Limitation on Claims.  No action arising out of any breach or claimed breach of this Agreement or transactions contemplated by this Agreement may be brought by either party more than one year after the cause of action has accrued.  For purposes of this Agreement, a cause of action will be deemed to have accrued when a party knew or reasonably should have known of the breach or claimed breach.

9.4 No Warranties.  No employee, agent, representative or affiliate of Company has authority to bind Company to any oral representa­tions or warranty concerning the Platform.  Any written representation or warranty not expressly contained in this Agreement will not be enforceable.

9.5 Force Majeure.  Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occur­rences, or causes beyond the control and without negligence of the parties.  Such events, occur­ren­­ces, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

9.6 Waiver.  Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective.  Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.

9.7 Severability.  If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amend­ments that will preserve, as far as possible, the intentions expressed in this Agreement.  If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

9.8 Integration.  This Agreement (including any addenda hereto signed by both parties) con­tains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter.  This Agreement may not be amended, except by a writing signed by both parties.

9.9 Purchase Orders.  No terms, provisions or conditions of any purchase order, acknowledgement or other busi­ness form that Customer may use in connection with the acquisition or licensing of the Platform will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any fail­ure of Company to object to such terms, provisions or conditions.

9.10 Export.  Customer acknowledges that the Platform may contain features subject to United States and local country laws governing import, export, distribution and use. Customer is responsible for compliance by the Customer and its Authorized Users with United States and local country laws and regulations and shall not export, use or transmit the Platform (i) in violation of any export control laws of the United States or any other country, or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Order.

9.11 U.S. Government Restricted Rights.  If the Platform is accessed or used by any agency or other part of the U.S. Government, the U.S. Government acknowledges that Company provides the Platform, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Platform include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not granted under these terms, it must negotiate with Company to determine if there are acceptable terms for granting those rights, and a mutually acceptable written addendum specifically granting those rights must be included in any applicable agreement.

9.12 Publicity.  Customer acknowledges that Company may desire to use its name in press releases, product bro­chures and financial reports indicating that Customer is a customer of Company, and Customer agrees that Company may use its name in such a manner, subject to Customer’s consent, which consent will not be unreasonably withheld.

9.13 Counterparts.  This Agreement may be executed in counter­parts, each of which so executed will be deemed to be an original and such counter­parts together will constitute one and the same agree­ment.

9.14 Governing Law.  This Agreement shall be governed by the laws of the United States and the State of Florida, without reference to conflict of laws principles.  Any dispute between the parties regarding this Agreement will be subject to the exclusive venue of the state and federal courts in Indian River County, Florida.  The parties hereby consent to the exclusive jurisdiction and venue of such courts.