Terms of Service | seachange.it

These Terms of Service, hereafter called “TOS”, and any applicable Documents, govern the legal relationship between You and Us. You are responsible to read the entire TOS. You are subject to the terms of these TOS regardless of whether You read it. We urge You to read these TOS. See article 5 for definitions of capitalized pronouns and common nouns.

Estimates and Invoices

Estimates

You may request an estimate for Services from Us. We may provide an estimate at your request. We may also provide an estimate to You to resolve a service-related issue, or for any other reason. Normally, We deliver an estimate to You within forty-eight business hours following your request for an estimate. If You request an estimate that is time sensitive, You must state that in your request for the Estimate.
We may deliver an estimate to You by electronic mail, by a written document, orally by phone, orally in person, or by a project or Service proposal.
An estimate is not a legally binding agreement. Your acceptance of an estimate does not constitute or create a legally binding agreement until We generate and an Invoice.
Unless otherwise stated in an estimate, an estimate remains open for seven days, subject to our right to withdraw the Estimate at any time, or to reject your acceptance of an estimate at any time.
You are responsible for ensuring the Services described in the Estimate correctly describe your original specifications, and suit your purposes.
To accept an estimate, You must send a written acceptance of the Estimate to Us.
Once You deliver notice to Us of your acceptance of an estimate, We will verify pricing and availability of the Goods and Products Estimated. Upon verification of price and availability We then will send an Invoice to You. Unless We state otherwise in writing, once You pay the Invoice, We will start the work and order and deliver to You the Services described in the Invoice.
Unless otherwise stated in an estimate, prices We offer in an estimate are based on the purchase of all the Services described in the Estimate. Any change to the Services described in the Estimate may affect the prices offered in the Estimate.
If our price for Goods or Products described in an estimate changes, or the availability of one or more Goods or Products changes, after You accept the applicable Estimate, We may adjust the price or description of Goods or Products described in the Estimate accordingly. You are deemed to accept the price or description change(s) unless You reject the changes with notice to Us in time for Us to cancel our purchase of the applicable Goods or Products.
When We offer or describe a special price, promotion, discount, or bonus offer in an estimate, no other special promotion, discount or bonus offer for the Service described in the Estimate shall apply, unless We state otherwise in writing.
When You request an estimate from Us, You authorize Us to obtain a credit history or similar report before We extend credit or payment terms to You.

Invoices

An accepted Estimate is not binding on Us until We issue an Invoice to You for the Services described in the Estimate. Upon our issuance of an Invoice, the accepted Estimate becomes a legally binding contract between You and Us. If the Invoice is contingent on You pre-paying Us, We are not obligated to provide to You the consideration described in the Invoice until We receive payment in good, collectible funds for the total price, including freight, delivery and any other charges and expenses related to the Services described in the Invoice.
Once We issue an Invoice, We may be unable to cancel the Invoice. If You request cancellation of an Invoice after it become binding, We may at our sole discretion elect to do any, all, or any combination, of the following:

refuse cancellation entirely

accept a full or partial cancellation
charge You a fee for the cancellation
offer You a partial or full refund of any money You have paid on the Invoice
require full or partial payment from You of the Invoice amount

Terms and Conditions of Sale

When We provide to You an estimate of time or date of delivery of Services that is based on an estimate or other data from our vendors, shippers, or our vendors’ and shippers’ historical execution, We make no warranty or representation to You that the time or date of delivery will occur as estimated. You release and hold Us harmless from, and We are not liable to You, for any failure of such estimates to prove accurate, or for any resulting Damages, claims, demands, or expenses.
If We arrange a return or refund on your behalf from a third-person vendor, We may charge You a fee to process the return or refund, which You shall pay. We may deduct the fee from any money You pay to Us for any other Service.
When We agree to accept return of Goods or Products from You, You must return the Goods or Products to Us in their original condition, unused, unopened and unaltered.
We provide or sell Goods and Products to You subject to all applicable terms and conditions of the manufacturer, supplier or third-person vendor of the Goods and Products, including their return and claims policies. You accept Goods and Products subject to those terms and conditions. You release and hold Us harmless from any other obligation or failure or default of the manufacturer, supplier, or third-person vendor. We may communicate Your acceptance to any supplier or vendor on your behalf.
If You purchase Microsoft subscription licensing through Us, You agree that your communication to us of the committed license term requested (monthly or annually) for a specific license(s), or use of the provided license(s), constitutes acceptance of the Microsoft Online Subscription Agreement located at https://portal.office.com/commerce/mosa.aspx which is incorporated within this agreement in its entirety by reference. You agree that your committed license renewal term for Microsoft licenses may differ from any other agreement with Us and You agree to pay for all licensing as invoiced through end of the Microsoft agreement term for any specific license, with no recourse to cancel or transfer licenses to another account or reseller after purchase until the renewal date for each license. Cancellation or adjustment of license must be communicated to us at least 7 days prior to a monthly license renewal or 30 days prior to an annual license renewal anniversary date to ensure the change takes effect at renewal.

Delivery, Title and Risk

We will use commercially reasonable methods to deliver Services to You by the due date stated in Invoice or the Estimate underlying the Invoice. However, intervening factors may prevent Us from delivering by the specified date. You release and hold Us harmless from any liability to You for Damages that result from non-delivery or failure to deliver on time.
You or your agents must be available to accept Services at the delivery address that You designate from 8:00 a.m. to 5:00 p.m. on Business Days, unless We make other written arrangements with You.
You must inspect all Goods and Products immediately upon delivery and inform Us within three Business Days of your rejection of Goods and Products, or your intent to return, ask for a refund of payment for, or make a claim for any deficiency in any, Goods or Products. Otherwise, You are deemed to have accepted the Goods and Products.
Once delivered, You accept all risks of loss, breakage, damage and all other risks and perils to the delivered Goods and Products. You are responsible to secure, and insure against loss of or damage to, Goods and Products beginning the moment they are delivered to You.
Until We receive full payment of good, collectible funds for money You owe Us for any reason:

Title to, and all other property interests in, Goods and Products remain vested in Us, and do not pass to You until You comply with and meet all your obligations to Us with respect to those Goods and Services and any Invoices related to them, including without limitation payment.
Until You comply with and meet all your obligations to Us with respect to Goods and Services and any Invoices related to them, including without limitation payment, You hold Goods and Products as a fiduciary, bailee, and agent for Us, and You may not sell, use, open, alter, remove, relabel or otherwise affect the value or salability of the Goods and Products.
You grant to Us a security interest in all Goods or Products We deliver or sell to You for the unpaid amount of the purchase price described in the Invoice or otherwise. If the price of Services includes Goods and Products included in the Services We provide to You, the Goods and Products shall be subject to a security interest for the entire unpaid amount. If You do not pay Us the full purchase price for Services, We may immediately take possession of the Goods and Products with or without the use of legal process.
We may retain any recovered Goods or Production in full or partial satisfaction of the amount(s) You owe to Us. We may also foreclose our security interest.
In addition to the remedies described above, We are entitled to all other remedies of secured parties provided by law. If We elect to sell, We will give You at least ten days’ prior written notice of the time and place of any public sale of the Goods and Products, or of the time after which any private sale or any other intended disposition of the Goods and Products will be made. You shall reimburse Us for all costs and expenses We incur acquiring possession of the Goods and Products, enforcing these TOS, and selling or otherwise disposing of the Goods and Products, and We may add the costs and expenses thereof to the amount You owe Us.
We may, but are not obligated to, repossess or take back any Goods or Products that We sell or provide to You, if You do not pay for those Goods and Products in full. If You fail to pay for Services in full, and We repossess and sell one, more, or all those Goods and Products, You will remain liable to Us for payment of the deficiency, or the difference between the original price of the Goods and Products; plus all expenses We incur related to your default, including without limitation expenses of repossession, expenses of storage and sale, and attorney fees; less any proceeds of sale We may receive.

Once You use, install, customize or re-sell Goods and Products that We sell or otherwise provide to, You release Us from any claim of liability, or claim of indemnification for liability, for any defect in, or for breach of warranty regarding, those Goods and Services, that your buyer or customer, or any successor in title may assert against You or Us. You shall indemnify Us for any cost, liability, or expense We incur defending any such claim(s). This restriction on our liability does not impair your recourse or the recourse of your successor(s) in title against the manufacturer of the Goods and Products for any defect or breach of warranty regarding such Goods and Products.

Services

Troubleshooting Procedures

You must follow our instructions with regard to troubleshooting any problems with function of Goods and Products.
If We are unable to resolve problems with Goods and Products through our instructions that You execute, We will allocate reasonable resources (determined in our discretion) to resolve the problem(s). Unless our time involved in this process is an included Service described in a Managed Services Agreement between You and Us, We will charge You, and You shall pay, for all additional time We spend troubleshooting the problem, at our labor rate applicable at the time.

Consent to Tools, Technologies, and Access.

By requesting Services, You consent to our use of any tools or technologies We consider necessary to provide those Services. These tools include without limitation remote access software, security software, and monitoring software.
To provide Services to You expediently and effectively, You agree to provide Us full access to all your IT equipment, facilities, personnel, representatives, services and accounts, herein called “Assets”, including:

your computers, workstations and laptops
your servers, firewalls and other network equipment
your ISP, domain registrar and DNS provider accounts
your printers, copiers and associated equipment

We may use remote access or monitoring software to deliver support services. You consent to our use of such software on any covered device, and to automatic or manual installation of the software as needed.
We will determine the Assets to which We need access or authorization to access. If You introduce any new Asset to your environment with which We will interact, You agree to do all things necessary to ensure that We have access to, and are authorized to interact with that Asset on your behalf when needed.
If We encounter any delay in executing a service request because You did not previously enable our access to an Asset, We may in our discretion charge You additional fees outside the fees stated in the Schedule of Managed Services, an Invoice, or other Document, for extra time We expend gaining access.

Reasonable Assistance Limits.

If You require our assistance or other Services beyond what We deem commercially reasonable for any reason, We may decline, withhold, or discontinue additional work on the matter, unless You agree to, and do, pay Us additional compensation for the additional work.
If We determine the appropriate resolution for a problem is to engage the original vendor of applicable software, service, equipment or installation, You agree to pay the cost of engagement, whether directly to the vendor or in reimbursement to Us, in addition to any charges due Us for Services.

Goods, Products and Services Provided by Third Persons.

We may recommend goods, products, and services that third persons provide that in our judgment best fulfill your needs, specifications or requirements as You have expressed to Us. These goods, products, and services are hereafter called “Outside Solutions”.
Although We make our best effort to provide accurate and effective Outside Solutions, We have no control over the many factors that affect the suitability, function or fitness of these Outside Solutions. We also have no control over the actions or inactions of third-person suppliers. Additionally, We cannot ensure the compatibility of Outside Solutions with any new or existing computing or networking equipment or Internet services.
While delivering Services, We may customize Outside Solutions in ways the third-person vendor, manufacturer, or supplier did not intend, or in ways that alter or negate the warranty, suitability, reliability or fitness of the Outside Solution.
By receiving, accepting, or declining our recommendation for Outside Solutions, You accept sole responsibility for and release and hold Us harmless from any failure, defect, lack of suitability or fitness for a particular purpose of any Outside Solution.
When We recommend an Outside Solution, We do not guaranty the Outside Solution will solve the problem the Outside Solution addresses. We do not necessarily or automatically include Services related to an Outside Solution free of charge, or as an additional, included Service within the scope of our Managed Services or Services described in an Invoice or otherwise. Services We provide to You pursuant to a Managed Services Agreement that are related to an Outside Solution may exceed the scope of our reasonable support efforts. In that event, We may charge You, and You shall pay Us, for time We spend executing an Outside Solution (whether or not successful) using our labor rate applicable to You at the time.

Compliance.

You must notify Us of any legal or industry standard compliance requirements to which You are subject, including without limitation the Health Insurance Portability and Accountability Act of 1996, the Sarbanes Oxley Act and Payment Card Industry Data Security Standards.
Unless stated otherwise in a Document, work related to understanding, implementation of compliance, confirmation of compliance, or resolution of compliance issues is not included in the scope of our work or Services for You.
Unless stated otherwise in a Document, We make no warranty or representation to You that any Service complies with, meets any standard of, or is acceptable in any way with, any law or industry standard to which You are subject.

Invoices and Payments

Payment Due Dates. You agree to pay all Invoices We issue to You by the due date and in accordance with the terms stated in the Invoice, these TOS, and any applicable Document. You shall pay Invoices marked due upon receipt within three Business Days after your receipt. If You do not pay one or more Invoices in accordance with their terms, You may experience delays in service, service interruptions or the effects of outside pricing changes. You release Us and hold Us harmless from any Damage You may sustain because of delays in service, service interruptions, price changes, and any other effect of not complying with the terms of Invoices.
Interest and Late Fees. If You fail to pay one or more Invoices by their due dates, You shall pay to Us interest on the unpaid balance at the rate of twelve percent per annum, calculated daily. In addition, We may impose, and You shall pay to Us, a late fee of 2.5% of the balance stated on the Invoice, and an additional late fee of 2.5% of the balance due on the Invoice for each month thereafter until You pay the Invoice amount in full.
Collection Expenses. You shall pay to Us all costs and expenses We incur collecting from You unpaid Invoices or other amounts You owe Us; including without limitation debt collection fees, fees and expenses We pay or owe to debt collection agents, attorney fees, court costs, and returned-check fees (Recovery Costs). In addition, You shall pay Us for time We spend collecting Recovery Costs at an hourly rate We may set from time to time, and in the absence of a set hourly rate, at the average rate We bill for our technicians’ performing Services.
Application of Payments. We may apply payments We receive from You on Invoices in any manner We determine in our sole discretion, including without limitation:

first, to reimburse Us for Recovery Costs We have incurred regarding your unpaid Invoice(s)
second, to any interest due on any unpaid Invoice(s)
third, to the principal amount due on any unpaid Invoice(s)

We may apply payments to any unpaid Invoice(s) in any order or aging in our sole discretion. We may also split payments among unpaid Invoice(s) in our sole discretion.

Payment Methods. You may pay Invoices that We issue to You using various acceptable payment methods We offer, that may change from time to time but generally include cash, major credit card, or ACH (direct bank transfer via Automated Clearing House). If We do not receive payment by the due date of an invoice, You authorize us to initiate payment using any payment method You have provided to us previously, and You agree to not initiate a chargeback or dispute to prevent payment without first following our process below for Invoice Errors.
Invoice Errors. If You dispute validity of an invoice, in part or in whole, You must contact us within 30 days of the invoice date to discuss the discrepancy so that We can review and make a determination. If We determine an invoice is in error, We will void it, reissue it, credit your account towards a future invoice, or provide a refund to You as necessary to correct the error at our discretion, within 30 days of your notice to us.

Service Requests

Contact Media. You agree to place service requests to Us through the following media or methods:

Support portal: support.seachange.it
Email: support@seachange.it
Phone: 386-628-3161 option 1

We may not respond to service requests directed to Us in any other manner or medium. You release and hold Us harmless from any Damage You may sustain as a consequence of our failure to respond to a service request that You direct to Us in any other manner or medium. We may respond to your requests during Business Hours, or in our discretion at other times. We do not guarantee response times. If You have a Managed Services Agreement with Response Time Guarantees, the penalty We incur for failing to meet minimum response time is described in your Managed Services Agreement.

Service Calls.

If You do not have a Managed Services Agreement with Us, and You request that We travel to your site or any site to provide Services to or for You, We may make an appointment with You to accommodate your service request. You shall pay to Us travel charges as described in our Schedule of Fees, available on request, charges for labor based on the time required to complete your Service request at our standard hourly rate, or any other rate to which You and We have agreed, applicable at the time We provide the Services, and for any Goods or Products We may sell or provide to You. You shall pay us these charges immediately upon our completion of the work.
If You cancel a service appointment eight Business Hours or less before the appointment is scheduled to begin, or if We appear for the appointment, but You are not present, or have failed to prepare to receive Us to begin your service request, You shall pay to Us a cancellation fee in the amount of our standard trip charge applicable at the time.
We may cancel or reschedule a service appointment with You for any reason without payment of any consideration to You.
We generally execute service requests in the order in which We receive them. An “expedited Service request” is a request You make to Us to advance our response to your Service request to the next-available technician. If You request an expedited Service and our work schedule permits Us to advance your requested Service, You shall pay an expedited Service fee as described in our Schedule of Fees, available to You at your request. Expedited Service requests, or Service requests performed outside of Business Hours, have additional fees that may be 1.5 times to 2 times the amount of our standard hourly rate and may have minimum amounts due as defined in our current Schedule of Fees. Expedited Service performed outside of Business Hours may have their multipliers combined.

Definitions and General Terms

Definitions; Application; Integration; Compliance with Law; Liability.

In these TOS, the following words bear the following definitions:

“Agreement” means this Terms of Service Agreement.
“Business Days” means Monday through Friday, excluding holidays when federal banks are authorized to close and any other holidays We may observe.
“Business Hours” means 8 a.m. to 5 p.m. Eastern Time (including Daylight Saving Time), on Business Days, but excludes holidays when federal banks are authorized to close and any other holidays We may observe.
“Damages” means losses, costs and expenses; and includes general, direct, indirect, special, incidental, consequential and punitive damages; liabilities, penalties, and reasonable legal fees and costs of any kind or amount.
“Document” means Managed Service Agreement, Description of Services, Estimates, Invoice, Proposal, statement of work, Schedule of Fees, Service agreement, project agreements, work orders, and any other written contract or other written arrangement, between You and Us, that are related to Services.
“Estimate” means an invitation from Us to You to provide Services to You.
“Goods and Products” means the property We provide or sell to You and includes software and hardware.
“Invoice” means a document that We issue to You that describes the Services We will provide to You for the price and on all other terms described in the Document and constitutes a contract by which You purchase from Us, and We provide or deliver to You, the described Services for the prices stated in the Invoice and in any allied Documents, if any.
Except in the context of a plaintiff or defendant, or other participant in litigation, “Party”, whether capitalized of not, means You or Us, as applicable, and “Parties”, whether capitalized or not, mean You and Us.
“Proposal” means a type of Estimate related to Services We provide to You under a Managed Services Agreement.
“Response Time” is measured as the difference between the time We are first notified of a New Service Request as per the process outlined in our General Terms and Conditions and the time that We start providing Service on the Service Request. We do not count any triage, scheduling or dispatch work when calculating Response Times.
“Services” means the Goods, Products, and services We provide to You pursuant to these TOS or any applicable Document.
“Us” and “We” mean Seachange IT Services, a Florida corporation which does business under its registered name and our members, managers, directors, shareholders, affiliates, officers, agents, employees, successors and assigns.
“You” means any person, individual or business entity that seeks or obtains an estimate, Invoice or contract with or from Us to provide Services.

The terms of a Managed Service Agreement, a Proposal, or any other mutually signed agreement between You and Us, control over any conflict with these TOS. If the terms of any other Document conflict with the terms of these TOS, the terms of these TOS control.
These TOS and all other applicable Documents constitute the entire agreement between You and Us regarding their subject matters. These TOS and other applicable Documents supersede all previous discussions, statements, representations, agreements, arrangements, understandings and contracts between You and Us regarding applicable subject matter.
These TOS and applicable Documents shall be construed to the extent possible as congruent with any law of any jurisdiction that regulates any subject covered or contained in these TOS. If any law regulates or controls any subject matter of these TOS or Documents inconsistently with these TOS or Documents, the law of the jurisdiction shall control, these TOS and applicable Documents shall be deemed amended to comply with the law, and any court with valid personal and subject-matter jurisdiction may reform these TOS and applicable Documents to comply with applicable law.

Representations and Warranties; Manufacturer’s Warranties; Disclaimer of Warranties; Limitation on Liability for Damages.

We shall perform Services We provide to You in a good and professional manner.
Unless We state otherwise in writing, the manufacturer’s, distributor’s, or other third persons’ warranty is your exclusive warranty with respect to all Goods and Products that We sell to You. You are solely responsible for making a claim with the manufacturer, distributor, or other third person of defect or other failure regarding all Goods and Products that We obtain from any third person.
We assign to You, and You shall have the benefit of, all manufacturer’s, distributor’s or other third person’s express and implied warranties, if any, regarding any Good or Product.
We make no express warranties regarding any Good or Product We obtain from any third person and provide or sell to You. WE DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE regarding any Good or Product.
Subject to the limits described in section 5.2.6. below, your sole remedy against Us for any claim of breach of contract, negligence, strict liability, or any other theory of recovery, related to, or based on, any Services We provide or sell to You is refund of any money You paid to Us for the Service We provided or sold. Otherwise, You release Us and hold Us harmless from, and We shall not be liable to You or any customer, client, business associate, or business affiliate of yours, or any other person with whom You do business, for any Damages, even if We are aware of the possibility of such Damages.
Our combined total liability to You shall not exceed the total amount of money You paid to Us during the three months immediately preceding the date of the act, omission or occurrence for which You claim We are liable to You, less the cost(s) to Us of any Services We provided to You during the three-month period.
Except for our Chief Executive Officer (CEO) or President, no employee or agent of ours has any right or authority to make any representation, warranty or promise to You that is inconsistent with these TOS or any Document; or to deviate from these TOS or any Document.
You agree that We are not an expert cybersecurity firm and make no claims or warranties as to the security of our products or services, although we endeavor to provide technology support products, services, and recommendations in a manner generally in line with good cybersecurity practices whenever reasonably possible. We are also limited by our lack of ability to control or direct the actions of You or Your employees, contractors, and customers. Thus, with respect to any losses covered by, or required to be covered by, cybersecurity or business liability insurance under the terms of this agreement, other than those losses caused by Our gross negligence or intentional acts, you hereby waive and release Us, Our officers, directors, employees, vendors and agents, from any and all claims and liability or responsibility with respect to such losses, including losses arising out of the inability to conduct business. You further agree that Your insurance company or companies shall have no right of subrogation against Us on account of this release. We encourage You to obtain and maintain a cyber liability insurance policy in consultation with your insurance agent.

Notices.

Notice from Us to You shall be written and delivered by email to the address(es) You supply to Us, by United States Postal Service first-class mail or certified mail, or by personal delivery to the address You have most recently provided to Us by notice to Us.
Notice from You to Us shall be written and delivered by email to notices@seachange.it, by United States Postal Service first-class mail or certified mail to 415 SW Beyond Court, Lake City, FL 32024.
Notice by email from You to Us is deemed received only when We acknowledge receipt of your email.
Notice by email from Us to You is deemed received two business hours after the time sent (as recorded on the device or service from which the sender originated the message), unless the sender receives an automated message that the email has not been delivered. An “Out of Office” or other automated reply that indicates successful delivery, but message not read, shall constitute receipt of the notice.
Postal mail is deemed to be received when signature confirmation is received.

Solicitation Restriction; Damages for Violation

You acknowledge that our employees are one of our most valuable assets. Among other terms of employment, our employees are prohibited from seeking or accepting employment with You during the course of their employment with Us and for two years thereafter. You agree to not offer employment to any of our employees, or employ any of our employees during the term of their employment with Us and for a period of two years thereafter.
You acknowledge that the Damages We would sustain from your breach of the restriction described in the foregoing paragraph would be difficult to calculate with precision. Therefore, if You violate the restriction described in the foregoing paragraph, You shall pay to Us the gross amount of the employee’s or employees’ gross annual salary(ies) as liquidated damages, and not as a penalty, within ten days after We deliver to You an Invoice for the payment. In addition, We may terminate these TOS and applicable Documents without further notice or liability to You. The amount of liquidated damages described above is not a penalty and is calculated by the projected costs We would incur to identify, recruit, hire and train suitable replacements for such personnel.

Communications.

You authorize us to send emails to You, and to contact You by telephone or SMS (text) message, for marketing and business purposes. As a condition of our business relationship with You, You may not decline emails and telephone calls, and shall accept and respond to them, when made for business or service support purposes.
You agree to receive SMS (text) messages from Us and You are expressly consenting to be contacted at phone numbers You provide to Us. You also agree to receive potentially auto-dialed phone calls or text messages from Us about promotions and offers at the phone number provided. You understand consent is not necessary to purchase goods or services. You may revoke Your consent by letting us know (including by replying STOP to any text message communication). We only provide communication intended to enhance Your use of our service. You authorize us to send SMS (text) messages to you and any employees of Your organization regarding any specific service request, even if you prefer to not receive marketing messages.
You agree that We may record any and all voice and/or video communications, whether via telephone or other online communications platform, with or without advance or ongoing notice, between You and Us for training or other business purposes. However, We are not obligated to record any communications and may choose not to do so in Our sole discretion.

Suspension of Services.

If You fail to pay for any one or more Services in accordance with the terms of these TOS or any Document, We may refuse, suspend or terminate Services to You. We shall try to give You prior notice of refusal, suspension or termination, but We are not required to give You such notice. If We refuse, suspend or terminate Services, We shall have no liability or responsibility to You for, and You release Us from, any resulting loss of data, your inability to conduct your business, inconvenience to You or your customers, clients or business associates or affiliates; and for and from any other Damages.

Termination.

Termination of any Document shall not excuse the obligation of a Party to perform any obligation described in these TOS or any Document that accrues prior to termination of the Document and by its nature must be performed or observed after termination. However, We have no obligation to You to continue providing future Services when You fail to pay for past Services or other Services for which payment is due but You have not paid.
Our failure to exercise any one or more remedies to which We are entitled by the terms of these TOS, any applicable Document, or any applicable law, shall not constitute waiver of that or those remedies, unless We have executed a written waiver of that or those remedies.
After termination of our contractual relationship, or otherwise, We are not required to return to You any of your data stored in the cloud (equipment of our vendors or other third persons) or on our equipment, including backups of your data. We may delete data We control. At Your request, We may ask third persons who have control over your data to delete your data. Unless We agree otherwise in writing, We do not guarantee that third persons will effectively and irretrievably delete any or all your data.

Rights to Deliverables.

We exclusively retain all rights, title, and interest, including without limitation, intellectual property rights, in all works and Services that We provide to You in accordance with these TOS, the Documents, and otherwise.
Upon full payment to Us for Services We provide to You, We grant to You a non-transferable and non-exclusive license to use those Services. This grant does not apply to, license or authorize any use of any Good or Product that violates the intellectual property rights of other persons with interests in the Goods or Products, including without limitation patents, trademarks and copyrights.

Fees; Charges, Expenses and Taxes.

Unless We state otherwise in a Document, all rates and amounts We charge or Estimate do not include taxes or other government levies, charges, or excises on Services, hereafter called “Taxes”.
We may collect all Taxes We deem in our reasonable discretion required by law, including without limitation Taxes due on subscription software. If a government agency determines any additional Taxes are or were due on any Services We sold or provided to You, You shall pay any such Taxes to Us on our demand. We agree to supply to You available proof of or support to our demand for additional Taxes. If any government agency determines that We collected any amount from You in excess of any Taxes due on Services, We shall refund to You the amount of the overpayment upon our receipt from the agency of the overpayment or our receipt of any credit from the agency on any future Taxes due.
We shall charge You for Services based on our then-current rate and fee schedules, unless You and We agree in writing to another price as part of a Document, service agreement, project or other endeavor.
Unless You and We agree otherwise in writing, We shall charge You, and You shall pay, for reasonable travel expenses, freight, delivery, shipping, parts, services or any other cost We incur selling or providing Services to You.
When possible, We shall attempt to obtain your prior approval for any charges not anticipated or described in these TOS or applicable Documents.

Indemnification.

You shall indemnify and hold Us harmless for all Damages We incur as a result of any malicious or intentional act You do. This indemnification will survive termination of any Document.
If You breach any term of these TOS or any Document, You shall indemnify and hold Us harmless from Damages We sustain.
If We breach these TOS or any Document, and We do not cure the breach within thirty days after We receive notice of the breach, our liability to You is limited to the lesser of the amount described in Section 5.2.6, or the reasonable cost You incur to cover the breach by employment of another vendor, or otherwise, less any amount of money due from You to us for the Services We failed to deliver. However, We shall have no indemnity liability to You for Damages for which your insurer, or any other insurer, indemnifies You.

Confidential Information.

For the purposes of these TOS, “Confidential Information” shall mean your non-public information that You identify to Us as confidential.
We may disclose your Confidential Information and non-Confidential Information as necessary for delivery of Services to You.
We may disclose your Confidential Information and non-Confidential Information to our employees, agents, consultants and contractors on a need-to-know basis.
We may make copies of Confidential Information only as required in the execution of Services We provide, sell, or render to You.
Nothing in these TOS is intended to grant any rights, title, or interest in your Confidential Information to Us.
The obligations, restrictions, and limitations described herein regarding Confidential Information shall not apply to information that: (a) is in the public domain (provided the Confidential Information did not become public solely by our breach of the non-disclosure terms of these TOS); or (b) We rightfully receive from a third person that had a right to disclose the Confidential Information to Us without any obligation of confidentiality.

Use of Logo and Name.

Unless otherwise stated in a written document that We have signed, We may use or display your name, copyrighted material, service marks, tradenames, trademarks and logos, whether or not registered with any government agency, any or all of which are herein called “Customer Marks”:

to the extent any customization or implementation of one or more Services We provide to You involves or requires use, display, or incorporation of one or more Customer Marks, and
on our website and marketing material to identify You as a customer or client of Ours

We may not use your Customer Marks for any purpose that competes with your business; or that constitutes violation of your intellectual property rights, except as described in subparagraphs 1. a. and b. above.

Illegal Activity or Property.

If, in the course of executing Services for You, We find evidence of illegal activity or property that is illegal to possess under any applicable law, including without limitation, illegal images, illegal interactions, money laundering, controlled substance dealing, or any other act or thing that is criminal, We may notify law enforcement or other government agents or agencies. You release Us from any liability to You for such reports and disclosures, and for the consequences, including Damages, of making those reports and disclosures. You hold us harmless for any Damages You may sustain as a consequence in whole or part, of reporting our findings or observations to law enforcement or other government agents or agencies.

Dispute Resolution; Venue and Jurisdiction; Waiver of Jury Trial.

Except for collection of amounts due Us from You for Services, the terms of this section 5.13 apply to all disputes between the Parties and claims of one Party against the other for breach of contract, tort claims, or other claims or theories of liability. If You do not pay us for Services, We may immediately, without mediation, proceed with any form of debt collection, including without limitation, placement of the claim with a debt collection agent, and filing suit in court.
Otherwise, prior to submitting any claim, issue or dispute related to these TOS, any Document, Services, or the performance, actions, or inactions of the other Party, to the judicial system, the Parties shall submit any claim, issue or dispute that remains unresolved for a period of thirty days or more to non-binding mediation conducted by a qualified mediator that the Parties mutually appoint. Either Party may commence mediation by providing the other Party with a written notice requesting mediation. The notice shall state the subject of the dispute and the relief requested. The Parties shall attempt to mutually select a mediator. If a mediator is not selected within ten days after the date the notice is received by the non-requesting Party, then the requesting Party shall submit five names of mediators with a summary of their experience and qualifications to the non-requesting Party, who shall then select one as the mediator. If the non-requesting Party fails to select a mediator within seven days thereafter, either Party may petition the Circuit or any Superior Court of Columbia County, Florida, and the court shall have authority, to appoint a mediator. The Parties shall use commercially reasonable efforts to expedite the mediation process. At any time during the mediation process, the Parties may agree that if there are one or more claims, issues or disputes that remain unresolved at the end of the non-binding mediation, the mediation may render a final and binding decision on the unresolved claim(s), issue(s) or dispute(s). If the mediator renders a final and binding decision, the decision of the mediator shall bind the parties, and shall be enforceable in the Circuit and Superior Courts of Hamilton County, Florida, and in any court with proper jurisdiction in a judicial district where a party against whom enforcement is sought resides.
If a claim, issue or dispute proceeds to litigation, the Parties acknowledge that unless waived, they have a state and federal constitutional right to a trial by jury to hear and judge any claim, issue, dispute, or other matter related to any transaction between the Parties, one or more Documents, Services, and payment for Services; except in certain claims in equity. Both Parties waive their right to trial by jury in any claim, issue or dispute pertaining to the interpretation, enforcement, breach, performance, or non-performance of these TOS, one or more Documents, Services, and payment for Services; in any claim of fraud, negligence or other tort related to these TOS, one or more Documents, Services, and payment for Services, or inducement to enter and make a contract between the Parties; including without limitation any claim, demand, action, defense, counterclaim, setoff, or cause of action:

arising under these TOS, or any transaction described in any Document or agreement related to any Service, or arising from any Service, or
related or incidental to the dealings of the Parties with respect to any Service, Document, or other agreement or document executed or delivered in connection thereto, or any transactions described in or related to any Service,

in each case whether now existing or hereafter arising and whether sounding in contract or tort or otherwise. Any such claims, demands, actions or causes of action shall be decided by court trial without a jury. This waiver of jury trial is a material inducement to Us to render, provide and sell Services to You.

The Parties shall share equally the cost of the mediation process, including without limitation the cost of the mediation facility, the mediator, and any expenses the mediator recovers under its agreement(s) with the Parties.

Updates and Modifications to these TOS.

The most current version of these TOS in force at the time of inquiry, reference, issue or dispute, available at seachange.it/tos, and other applicable Documents, shall govern our contractual relationship. We may amend, revise, modify or replace these TOS from time to time. We may try to notify You of material revisions via email to the email address associated with your account, but notice to You is not a prerequisite to the effectiveness of changes to these TOS. You are responsible for staying current with the terms of these TOS. By continuing to access, buy, or use Services after posted revisions become effective, You agree to be and remain bound by the remaining and revised terms.

Assignment; No Third-Party Beneficiaries

You may not assign any Documents to any third person without our prior written consent. Any assignment You make without our consent is void. We may assign these TOS and applicable Documents without your consent to any person We control, or to any person who acquires a controlling interest in our stock or other entity interest, or which acquires substantially all our assets. If We make any assignment described in the previous sentence, We may also transfer Your data and any data in our possession or control, that You hold, possess, or control for, or related to, any of your customers, clients, or other persons with which You do business.
The Parties agree to these TOS for their exclusive benefit. The Parties do not intend these TOS to benefit any third person, or to be enforceable by any third person. The rights of the Parties to terminate, rescind, or agree to any amendment, waiver, variation or settlement under or related to these TOS are not subject to the direction, control, or consent of any third person.

Independent Contractor.

You and We are independent contractors. We are not your employee or agent. You are not our employee or agent. Nothing stated in these TOS, applicable Documents, or in the performance of any Service, shall create a partnership or joint venture between You and Us, or any fiduciary relationship between You and Us.

Intervening Force Event.

An “Intervening Force Event” means an event, or a series of related or unrelated events, that are outside the reasonable control of the affected Party. Intervening Force Events include without limitation power failures; third-person disputes that affect the ability of a Party to perform or observe these TOS or any Document or to provide any Service(s); changes to law; disasters; explosions; storms; fires; floods; riots; insurrection; terrorist or other attacks and war.
When an Intervening Force Event causes a failure or delay in our performance of these TOS or any Document, or to provide any Service(s); those obligations are suspended for the duration of the Intervening Force Event and the time required for Us to recover and restore our ability to perform.

Severability.

If a court with valid personal and subject matter jurisdiction finds any term of these TOS invalid or unenforceable, then that provision shall be construed, to the extent reasonable and practical, to render the offending term valid or enforceable, and to support consummation of the transaction(s) described in any applicable Document or any Service on substantially the same terms originally described herein or therein. If no reasonable or plausible interpretation of the offending term is possible, the court (in litigation) or the Parties (by agreement) may sever the offending term from these TOS or applicable Document. These TOS shall then remain in full force and effect; unless the severed term alters the essential purpose or function of these TOS or any applicable Document, or is essential to maintain the substantive rights, obligations, or benefits of one or more Parties as described in these TOS or any applicable Document. In that event, the court (in litigation) may reform these TOS or any applicable Document, and may supply a substitute, valid and enforceable term or agreement that most nearly embodies the Parties’ intention(s), right(s), obligation(s) or benefit(s) described in these TOS or any applicable Document. Otherwise, or in addition, the Parties shall use their best efforts to negotiate in good faith a substitute, valid and enforceable term or agreement that most nearly embodies the Parties’ intention(s), right(s), obligation(s) or benefit(s) described in these TOS or any applicable Document.

Governing Law; Jurisdiction.

All aspects of these TOS, including without limitation, application, interpretation and enforcement, is governed by and construed in accordance with Florida law; except that if Florida law regarding conflicts of law requires application of another jurisdiction’s law, Florida law shall nevertheless apply. The courts of Florida shall have exclusive jurisdiction to adjudicate any dispute between You and Us. You submit to the personal jurisdiction of the State of Florida, regardless of your state or country of residence or domicile.