This XpertSea Subscriber Agreement (the “Agreement”) governs your use of the Online Service (as defined below), the Equipment (as defined below) and the Software (as defined below) provided by XpertSea Solution Inc., a corporation incorporated in the Province of Québec, Canada and having a place of business at 1365 Galilée Ave, Suite 100, Quebec, Province of Quebec G1P 4G4 (“XpertSea”) except to the extent separate Supplementary Agreement(s) (as defined below) have been executed between yourself and XpertSea. You are required to indicate your acknowledgement and consent to this Agreement in order to access and use the Online Service, the Equipment or the Software. By clicking on the "Create account" button, you are acknowledging to the terms of this Agreement and are consenting to be bound by it.
If you agree to this Agreement on behalf and in the name of a legal entity such as a company, corporation, partnership, etc. (referred to as a “Customer”), you represent and warrant that you have the power and authority to bind such Business to this Agreement. In such case, the term “Customer” refers to the Business.
If, however, you are unwilling to agree to this AGREEMENT or do not have the power and authority to act on behalf of and bind the Business, do not click on the button and do not ACCESS or otherwise use the ONLINE SERVICE.
The documents forming this Agreement are this document, Annex A – Service Levels, the Proposal, and any Supplementary Agreement (as the case may be), each and all of which are incorporated by reference into the Agreement and bind the Parties. Reference to an Annex includes any appendices, if any.
INTENDING TO BE LEGALLY BOUND, THE PARTIES AGREE AS FOLLOWS:
The following terms have the following meanings:
(a) “Aggregate Data” has the meaning set out in Section 4.3;
(b) “Analyses” has the meaning set out in Section 4.3;
(c) “Authorized Users” means Customer's employees, consultants, agents, or other third parties who are authorized by Customer to access and use the Online Service and who have been supplied access credentials for such purpose;
(d) “Confidential Information” has the meaning set out in Section 5.1;
(e) “Customer” means the physical person or Business accepting this Agreement;
(f) “Customer Data” means all raw data associated with Customer’s account with the Online Service, collected by Customer, the Equipment, Third Party Components or XpertSea and stored, processed, transmitted and displayed using the Online Service;
(g) “Disclosing Party” has the meaning set out in Section 5.1;
(h) “Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Software and Online Service provided or made available by XpertSea to Customer; provided, however, that Documentation specifically excludes any “community moderated” forums as provided or accessible through such knowledge base(s);
(i) “Effective Date” means the date of signature of the initial Order Form by the Customer;
(j) “Equipment” means the XperCount including Electronic Lid, Plastic Container, Optical or Camera Equipment and all other equipment, materials, devices and apps used with the XperCount or otherwise to collect Data;“Effective Date” means the date of signature of the initial Order Form by the Customer;
(k) “Feedback” has the meaning set out in Section 4.1;
(l) “Online Service” means XpertSea’s online aquaculture analytics portal service provided to Customer on a subscription basis. The Online Service includes all underlying proprietary technology (software, hardware, algorithms, code, processes, user interfaces, know-how, techniques, templates, designs and other tangible or intangible technical material or information) of XpertSea, its licensors and service providers. The provision of the Online Service also includes (a) system administration, hosting, system management, and system monitoring activities performed by XpertSea in connection with the back-office systems, infrastructure, web interface and mobile applications made available by XpertSea and (b) associated technical support and maintenance regarding the Online Service and the Software;
(m) “Order Form” means a document executed by Customer to confirm and document the description, quantity and prices for the Online Service purchased by Customer pursuant to this Agreement. Order Forms are deemed incorporated in this Agreement ;
(n) “XpertSea Access Codes” has the meaning set out in Section 2.7;
(o) “XpertSea Parties” has the meaning set out in Section 4.1;
(p) “Receiving Party” has the meaning set out in Section 5.1;
(q) “Software” means the software, including all embedded software, firmware and third-party software, interfaces, content and data provided by XpertSea and that is installed on the Equipment, as may be updated or replaced by feature enhancements or updates. Usage of the Software is governed by and subject to the terms of this Agreement in addition to other applicable license terms and conditions;
(r) “Subscription Term” has the meaning set out in Section 9.1;
(s) “Supplementary Agreement” means an agreement between Customer and XpertSea providing supplementary terms and conditions governing the access and use by the Customer of the Online Service, the Equipment or the Software. Examples of Supplementary Agreements include warranty terms for the Equipment;
(t) “Taxes” has the meaning set out in Section 3.6;
(u) “Third Party Components” means hardware or software components or cloud services that are not part of the Online Service or the Equipment, that are developed or delivered by third parties independently of XpertSea and that interoperate or integrate, at Customer’s demand, with the Online Service or the Equipment. Examples of Third Party Components are connectors to third-party sensors or equipment that the Customer may want to integrate with the Online Service;
(v) “Warranty” has the meaning set out in Section 6;
(v) “Warranty” has the meaning set out in Section 6;
The documents forming this Agreement are this document, the Order Form(s) and any Supplementary Agreement, all of which are incorporated by reference into the Agreement and bind the Parties. Reference to an Annex includes any appendices thereto.
The provisions of a Supplementary Agreement will have precedence over any incompatible corresponding provision of this Agreement.
XpertSea will host and make the Online Service available to Customer pursuant to this Agreement during the Subscription Term. XpertSea may update and modify the Online Service at any time but agrees that it will not make any changes to the Online Service during the Subscription Term that result in a material reduction of the performance, functionality, availability or security of the Online Service. Customer will benefit from the modifications and improvements that XpertSea may bring to the Online Service during the Subscription Term. Customer may make additional purchases regarding the Online Service by executing additional Order Forms. The Subscription Term of such added Online Service components or features will be coterminous with the then-current Subscription Term as set out in the Order Form. Customer acknowledges that XpertSea has no delivery obligation and will not deliver copies of the software comprising the Online Service pursuant to this Agreement.
XpertSea will use commercially reasonable efforts to make the Online Service available in accordance with the service levels described in Annex A; however, the following are excepted from availability commitments: (a) planned or unplanned (with regard to which XpertSea will endeavor to provide at least 48 hours advance notice) maintenance downtime, or (b) any unavailability caused by circumstances described in Section 10.9, or (c) the unavailability or modification by third parties of Third Party Components.
XpertSea will provide technical support to Customer for the Online Service and the Equipment (during the applicable warranty period) in accordance with XpertSea’s policies and the service levels set out in Annex A.
Customer is responsible for securing its credentials to access its account, and for any use of its account on the Online Service. If Customer becomes aware of any unauthorized use of its credentials or its account, Customer will notify XpertSea as promptly as possible. Customer must not allow access to, or use of, the Online Service by anyone that does not have individual credentials to access the Online Service.
Customer agrees that it will not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit the Online Service or make the Online Service available to any third party, other than to Authorized Users or as otherwise contemplated by this Agreement; (b) interfere with or disrupt the integrity or performance of the Online Service; (c) attempt to gain unauthorized access to the Online Service or its related systems or networks; (d) use or knowingly permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Online Service or the Software; (e) access the Online Service for the purpose of building a similar or competitive product or service; (f) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Online Service, the Equipment or any part thereof or otherwise attempt to discover any source code or modify the Online Service.
While XpertSea will maintain appropriate administrative, physical and technical safeguards for the protection of the confidentiality and integrity of Customer Data and will provide the Online Service in accordance with applicable laws and government regulations regarding personal information protection, as between XpertSea and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use the Customer Data in connection with the Online Service, including the storage and processing of the Customer Data outside of the jurisdiction where the Customer is located or operates. Subject to this Agreement, including XpertSea's confidentiality obligations, Customer hereby grants XpertSea a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform such acts with respect to the Customer Data as may be necessary for XpertSea to provide the Online Service to Customer. Customer is solely responsible for managing the access and creation or modification rights to the Customer Data by the Authorized Users.
(a) The Software is licensed, not sold, to the Customer by XpertSea for use only under the terms of this Agreement. The Customer agrees that the terms of this Agreement will apply to any XpertSea-branded application or software that may be pre-installed on the Equipment or downloaded separately and installed into the Equipment or another device owned by the Customer, unless such separate application or Software is accompanied by a Supplementary Agreement, in which case the Customer agrees that the terms of that Supplementary Agreement will also apply to Customer’s use of that separate application or Software. Customer acknowledges that XpertSea has no delivery obligation and will not deliver copies of the source code of the Software to Customer pursuant to this Agreement.
(b) XpertSea, at its discretion, may make available future Software updates. The Software updates, if any, may not necessarily include all existing Software features or new features that XpertSea releases for newer or other models of Equipment. The terms of this Agreement will govern any Software updates provided by XpertSea, unless such Software update is accompanied by a Supplementary Agreement, in which case the Customer agrees that the terms of that Supplementary Agreement will govern.
(a) Subject to the terms and conditions of this Agreement, the Customer is granted a limited, non-exclusive license to use the Software on its Equipment during the life of the Equipment. This Agreement does not grant the Customer any rights to use XpertSea proprietary interfaces and other intellectual property in the design, development, manufacture, licensing or distribution of software applications for use with the Equipment or the Online Service.
(b) Subject to the terms and conditions of this Agreement, the Customer is granted a limited, non-exclusive license to download Software updates that may be made available by XpertSea for the Equipment to update or restore the Software on any such Equipment that the Customer owns or control. This Agreement does not allow the Customer to update or restore any Equipment that the Customer does not control or own.
(c) The Customer may not, and the Customer agrees not to or enable others to, copy (except as expressly permitted by this Agreement), decompile, reverse engineer, disassemble, attempt to derive the source code of, decrypt, modify, or create derivative works of the Software or any services provided by the Software or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or by licensing terms governing use of open-source components that may be included with the Software) or access the Software for the purpose of building a similar or competitive product.
(d) Use of the Software requires a valid subscription to the Online Service to function and provide the functionality associated with the Software and to access updates.
(e) When connected to the internet, the Equipment will periodically check with XpertSea for updates to the Software and, if one is available, the update will automatically download and install onto the Equipment. To maintain eligibility to technical support, the Customer must ensure that the Equipment be connected to the internet at least once per month to perform Software updates.
Customer agrees to pay all fees specified in the Order Form(s) using one of the payment methods supported by XpertSea. Customer agrees to pay XpertSea in the currency specified in the Order Form(s). Except as otherwise specified in this Agreement, (i) fees are based on the Online Service purchased, regardless of actual consumption, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the purchased Online Service cannot be decreased during the relevant Subscription Term. All amounts payable under this Agreement will be paid without setoff or counterclaim, and without any deduction or withholding. Any refund by XpertSea of fees payable by Customer under this Agreement will be done through a credit note applied on a subsequent invoice.
The fees will be invoiced in advance and as set out in the Order Form(s). Except as otherwise provided in the Order Form(s), Customer agrees to pay all invoiced amounts within 30 days of receipt of invoice.
If XpertSea does not receive the payment of fees by the due date, then at XpertSea's discretion, such charges may accrue late interest at the rate of 15% per annum, compounded monthly, on the outstanding balance (or the maximum rate permitted by law, whichever is lower), from the date such payment was due until the date paid.
If any amounts owed by Customer hereunder are thirty (30) or more days overdue, XpertSea may, without limiting XpertSea's other rights and remedies, suspend Customer's and its Authorized Users’ access to the Online Service until such amounts are paid in full.
XpertSea agrees that it will not exercise its rights under Section 3.3 or 3.4 if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
The amount of all fees specified in the Order Forms are exclusive of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, "Taxes") and Customer is solely responsible for the payment of all such Taxes arising from XpertSea's provision of the Online Service hereunder, except any taxes assessed on XpertSea's net income. If XpertSea is required to directly pay, or Customer required to withhold, Taxes related to Customer's use of the Online Service hereunder, Customer agrees to promptly reimburse XpertSea for any amounts paid by XpertSea or compensate XpertSea for any amounts thus withheld.
XpertSea, its licensors and its service providers (together the "XpertSea Parties") own all right, title and interest in and to the Online Service, the Equipment and the Software, including all related intellectual property rights. XpertSea reserves all rights not expressly granted to Customer under this Agreement. Neither Customer nor any Authorized User will delete or in any manner alter the copyright, trademark, and other proprietary notices of XpertSea appearing on the Online Service, the Equipment, the Software or any portion thereof. Additionally, XpertSea exclusively owns all right, title and interest in and to all suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Online Service, the Equipment or the Software ("Feedback"), and Customer hereby assigns to XpertSea all its right, title, and interest in and to the Feedback, including all intellectual property rights. At XpertSea's reasonable request and expense, Customer will execute necessary documents and take such further acts as XpertSea may reasonably request to assist XpertSea to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.
As between XpertSea and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data. Customer Data is deemed Confidential Information of Customer under this Agreement. Customer will obtain and maintain any required licenses and authorizations necessary to permit (a) Customer’s use of the Online Service and (b) XpertSea to access and process the Customer Data in accordance with this Agreement, including outside of the jurisdiction where Customer is located or operates.
In connection with Customer’s access and use of the Online Service, XpertSea will have the right to create anonymized compilations and analyses of data stored, processed or generated by the Online Service (“Aggregate Data”) and to create reports, studies, analyses and other work product derived from Aggregate Data (“Analyses”). XpertSea will have exclusive ownership rights to, and the exclusive right to use, such Aggregate Data and Analyses for any purpose; provided, however, that XpertSea will not distribute Aggregate Data and Analyses in a manner which Aggregate Data or Analyses may reasonably permit the identification of Customer.
"Confidential Information" means all confidential or proprietary information of a party (the "Disclosing Party") disclosed to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the scope of this confidentiality undertaking, the parties acknowledge and agree that: (a) Customer Confidential Information includes the Customer Data; (b) XpertSea Confidential Information includes the non-public elements of the Online Service, the Equipment and Software; and (c) Confidential Information of each party includes the terms and conditions of this Agreement, pricing and other terms set out in the Order Forms, as well as budgets, financial information, technology, technical information, methods, processes, techniques, designs, computer programs and other business information disclosed by such party.
The Receiving Party must: (a) use the same degree of care to protect the confidentiality of the Disclosing Party's Confidential Information that it uses to protect its own Confidential Information (but in no event less than reasonable care); and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's permission.
The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal or law enforcement process or to enforce its rights under this Agreement. The Receiving Party must, however: (i) provide the Disclosing Party with prompt written notice of the requirement to disclose, (ii) provide the Disclosing Party with reasonable assistance in the event the Disclosing Party wishes to oppose or contest such disclosure, and (iii) limit its disclosure to what is strictly required by law, regulation or legal process.
Each party warrants that it has the legal authority to enter into this Agreement. XpertSea warrants to Customer that the Online Service and Software will materially conform with the relevant Documentation. Warranties on the Equipment is as set out in XpertSea’s warranty documents accessible at (Warranty).
Except as expressly set out in Section 6.1, the XpertSea Parties make no warranties of any kind, whether express, implied, statutory or otherwise in connection with this Agreement, the Online Service or the Software. Without limiting the foregoing, except as expressly set out in Section 6.1, and to the maximum extent permitted by applicable law, the XpertSea Parties expressly disclaim all implied warranties. The XpertSea Parties do not represent or warrant that: (a) the measurements and other output provided by the Online Service will be accurate and error-free. Customer understands and agrees that any measurement exercise, included that performed through the Equipment, Software and Online Service, involves making extrapolations based on a limited sampled population, which by definition is bound to produce results containing an inherent amount of uncertainty (b) the use of the Equipment, Software and Online Service will be completely secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data; (c) the Equipment, Software and Online Service will meet Customer's requirements or expectations; (d) any stored data will be accurate or reliable; (e) the Equipment, Software and Online service will be error-free or that all errors or defects in the Equipment, Software and Online Service will be corrected; or (f) the Equipment, Software and Online Service, or server(s) that make the Equipment, Software and Online Service operate as a system are free of malware or other harmful components. Customer is solely responsible for the quality of the samples it uses (for example, unclean or murky water or the presence of residues or dead specimen in the sample), which may influence the results computed by the Equipment. Customer is solely responsible for any outcome associated with the use of the Equipment, Software and Online Service, including any decision taken in reliance of any output generated through the use of the Equipment, Software and Online Service. The Equipment, Software and Online Service may be subject to limitations, delays, and other problems inherent in the use of the internet and electronic communications. The XpertSea Parties are not responsible for any delays, delivery failures, or other damages resulting from such problems.
XpertSea, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys' fees) awarded by a court of final jurisdiction arising out of any third-party claim, suit or proceeding alleging that Customer's use of the Equipment, Software or Online Service in accordance with this Agreement infringes a third party's copyright or patent. The foregoing obligations do not apply with respect to a claim of infringement if such claim arises out of (i) Customer's use of infringing Customer Data (ii) use of the Equipment, Software or Online Service in combination with any software, hardware, network or system not supplied by XpertSea where the alleged infringement relates to such combination, (iii) any modification or alteration of the Equipment, Software or Online Service other than by XpertSea, (iv) Customer's continued use of the Equipment, Software or Online Service after XpertSea notifies Customer to discontinue use because of an infringement claim, or (v) Customer's violation of applicable law. If any claim which XpertSea is obligated to defend has occurred, or in XpertSea's determination is likely to occur, XpertSea may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the allegedly infringing item, (b) substitute a functionally equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable to the period of time between the date Customer was unable to use the Equipment, Software or Online Service due to such claim and the remaining days in the then-current Subscription Term.
Customer, at its expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any trade secret, trademark, copyright, or patent; (ii) arising from occurrence of the conditions set forth in Section 7.1 (i)-(v) above or (iii) arising from Customer’s breach of its obligations hereunder.
The parties' obligations under this Section 7 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party must not settle or consent to judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 7 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.
Except as set out in Section 8.3 below, in no event will either party's liability arising out of or related to this Agreement, whether pursuant to contractual or extracontractual liability, tort or under any other theory of liability, exceed the amount paid to XpertSea by Customer in the twelve (12) months preceding the incident giving rise to such liability. The foregoing does not limit Customer's payment obligations under section 3.
The limitations and exclusions of Sections 8.1 and 8.2 above do not apply to either party's indemnification obligations.
Customer's right to use the Online Service begins on the start date specified in the Order Forms and continues for the period set out therein (each a "Subscription Term").
This Agreement may be terminated for convenience by Customer by giving XpertSea a written prior notice of such termination and paying XpertSea all amounts then due, including the fees payable for the remainder of the Subscription Term.
This Agreement may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, or (ii) effective immediately and without notice if the other party becomes insolvent or is the subject of a voluntary or involuntary petition in bankruptcy or of corporate reorganization or any similar relief or of an assignment for the benefit of creditors or appointment of a receiver for any reason or ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder. XpertSea may temporarily cease performance of its obligations during any Customer cure period.
In the event of termination of this Agreement and provided no amount is then owed to XpertSea by Customer, upon Customer's request made within 30 days after the effective date of applicable termination or expiration and payment of the applicable fees, XpertSea will make Customer Data available for download by Customer in CSV and standard digital images formats. After such 30-day period, XpertSea will have no obligation to maintain or provide any Customer Data and will thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
Upon termination of this Agreement for any reason, Customer’s and the Authorized Users’ accounts, including the right to access and use the Online Service will cease and Customer will delete any XpertSea proprietary material (such as downloaded copies of the Software) from its systems and devices (except for Software embedded in Equipment). Except to the extent expressly provided to the contrary herein, Sections 2.4, 2.9(a), and 4 through 10 will survive the termination of this Agreement.
XpertSea and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, employment or agency relationship between the parties. This is a non-exclusive arrangement.
This Agreement constitutes the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, oral or written, regarding the subject matter covered by this Agreement. To the extent of any conflict or inconsistency between the provisions of this Agreement and an Annex, the terms of this Agreement will prevail unless the parties clearly indicate their intent to override the terms of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other ordering documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
No waiver of any breach of this Agreement, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified and interpreted by the court so as best to accomplish the intent of the original provision. The invalidity or unenforceability of any provision will not affect any of the other provisions of this Agreement.
This Agreement will be governed by and construed under the laws in force within the Province of Quebec, Canada, excluding its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The courts located in Montreal, Province of Quebec, Canada will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
After obtaining Customer’s written consent, XpertSea may reference and use the name and logo of Customer and may disclose the nature of the Online Service provided hereunder in XpertSea business development and marketing efforts, including without limitation its web site.
Unless in connection with the sale of all or substantially all of its business whether by sale, merger, operation of law or otherwise, no party may assign this Agreement to any third party without the prior written consent of the other party, such consent not to be unreasonably withheld. Any purported assignment in violation of this Section will be void. This Agreement binds and benefits the parties, their respective successors and permitted assigns. There are no third-party beneficiaries to this Agreement.
Any notice, consent or other communication of a legal nature under the Agreement must be given in writing and delivered by certified mail or recognized overnight courier service, by hand, or by email. In Customer’s case, such communication will be made to the address set out in the Main Document and in XpertSea’s case, such communication will be made to the following addresses: 1365 Ave Galilee, suite 100, Quebec, QC, G1P 4G4, Canada or firstname.lastname@example.org. Such notice, consent or other communication will be deemed to have been given and received on the day it is actually delivered (or if that day is not a business day, on the following business day), unless it is delivered after 4:30 p.m., in which case it will be deemed to have been given and received on the next business day. A party may, from time to time, designate another address by transmitting a notice to the other party in accordance with this Section 10.8.
Except for performance of a payment obligation, no party will be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement for convenience upon written notice to the other party.
Help desk response time and resolution of problems will be measured for service calls (telephone or email) placed by Customer to XpertSea’s help desk each calendar month. XpertSea’s response time to service calls to the help desk will be measured as the time between the reception of a call or email and the acknowledgement of its reception by XpertSea during regular business hours at the location of the contacted help desk (Monday to Friday, 8h00 am to 5h00 pm EST). XpertSea’s resolution time of problems reported in a service call will be measured as the time between the acknowledgement of the reception of the service call by XpertSea and the implementation by XpertSea of a fix or workaround for the problem reported. The Service Level for response and resolution times to service calls:
For the purposes of this Section, the support tiers and corresponding description referred to in the table above have the following meanings: