Subscriber Agreement

Intro

Last updated: November 2020

XpertSea Farm Application Terms of Use

This Mobile Application End User License Agreement ("Agreement") is a binding agreement between you ("End User" or "you") and 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"). This Agreement governs your use of the XpertSea Farm App available on iOS and Android platforms (including all related documentation, the "Application"). The Application is licensed, not sold, to you.

By installing the application, you (a) acknowledge that you have read and understand this agreement; (b) represent that you are 18 years of age or older/of legal age to enter into a binding agreement; and (c) accept this agreement and agree that you are legally bound by its terms. if you do not agree to these terms, do not download, install or use the application and delete it from your mobile device.

1. License grant

Subject to the terms of this Agreement, XpertSea grants you a limited, non-exclusive, and nontransferable license to:

(a) download, install, and use the Application for your personal, non-commercial use on a single mobile device owned or otherwise controlled by you ("Mobile Device") strictly in accordance with the Application's documentation;

(b) use the Application to enter into a binding agreement with XpertSea for the sale of aquaculture protein or obtain estimated quotes on the value of the protein; and

(c) access, stream, download, and use on such Mobile Device the Content and Services (as defined in Section 9) made available in or otherwise accessible through the Application, strictly in accordance with this Agreement and the Terms of Use applicable to such Content and Services as set forth in Section 9.

2. Reservation of Rights

You acknowledge and agree that the Application is provided under license, and not sold, to you. You do not acquire any ownership interest in the Application under this Agreement, or any other rights thereto other than to use the Application in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. XpertSea, its licensors and its service providers (together the "XpertSea Parties") own all right, title and interest in and to the Application, including all related intellectual property rights. XpertSea reserves all rights not expressly granted to you under this Agreement. Additionally, XpertSea exclusively owns all right, title and interest in and to all suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Application ("Feedback"), and you hereby assign to XpertSea all your right, title, and interest in and to the Feedback, including all intellectual property rights. At XpertSea's reasonable request and expense, you 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.

3. Customer Data

As between you and XpertSea, you exclusively own all right, title and interest in and to all Customer Data (as defined below). You must obtain and maintain any required licenses and authorizations necessary to permit (a) your continued use of the Application and (b) XpertSea to access and process the Customer Data in accordance with this Agreement, including outside of the jurisdiction where you are located or operate.

4. Aggregate Data and Analyses

In connection with your access and use of the Application, XpertSea will have the right to create anonymized compilations and analyses of data stored, processed or generated by the Application (“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 your personal identification.

5. License Restrictions

You shall not:

(a) copy the Application, except as expressly permitted by this license;

(b) modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Application;

(c) reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code of the Application or any part thereof;

(d) remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Application, including any copy thereof;

(e) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Application, or any features or functionality of the Application, to any third party for any reason, including by making the Application available on a network where it is capable of being accessed by more than one device at any time;

(f) remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Application; or

(g) use the Application in, or in association with, the design, construction, maintenance, or operation of any hazardous environments or systems.

6. Collection and Use of Your Information

You acknowledge that when you download, install, or use the Application, XpertSea may use automatic means (including, for example, cookies and web beacons) to collect information about your Mobile Device and about your use of the Application. You also may be required to provide certain information about yourself as a condition to downloading, installing, or using the Application or certain of its features or functionality, and the Application may provide you with opportunities to share information about yourself with others. All information we collect through or in connection with this Application is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this Application, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.

7. Use and Protection of Customer Data

While XpertSea will maintain appropriate administrative, physical and technical safeguards for the protection of the confidentiality and integrity of all raw data associated with your account on the Application and stored, processed, transmitted and displayed using the Application (“Customer Data”) and will provide access to the Application in accordance with applicable laws and government regulations regarding personal information protection, as between you and XpertSea, you are solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. You represent and warrant that you have obtained all rights, permissions, and consents necessary to use the Customer Data in connection with the Application, including the storage and processing of the Customer Data outside of the jurisdiction where you are located or operate. Subject to this Agreement, including XpertSea's confidentiality obligations, You hereby grant 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 functionality of the Application to you.

8. Account

You are responsible for securing your credentials to access your account, and for any use of your account on the Application. If you become aware of any unauthorized use of your credentials or your account, you must notify XpertSea as promptly as possible. You must not allow access to, or use of, the Application by anyone that does not have individual credentials to access the Application.

9. Sale of aquaculture protein

The Application allows you to use the embedded platform and interface to sell to XpertSea qualifying acquaculture protein in your lawful possession and control. The terms of such sale and assignment of property to XpertSea are governed by a separate purchase order and applicable terms which shall be generated in the Application and the signing process thereof shall be handled by our third-party service provider PandaDoc.

10. Content and Services

The Application may provide you with access to XpertSea's website located at https://www.xpertsea.com (the "Website") and products and services accessible thereon, and certain features, functionality, and content accessible on or through the Application may be hosted on the Website (collectively, "Content and Services"). Your access to and use of such Content and Services are governed by Website's Privacy Policy located at https://www.xpertsea.com/legal/privacy-policy, which is incorporated herein by this reference. Your access to and use of such Content and Services may require you to acknowledge your acceptance of the Privacy Policy and/or to register with the Website, and your failure to do so may restrict you from accessing or using certain of the Application's features and functionality. Any violation of such terms will also be deemed a violation of this Agreement.

11. Updates

XpertSea may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, "Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that XpertSea has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the internet either:

(a) the Application will automatically download and install all available Updates; or

(b) you may receive notice of or be prompted to download and install available Updates.

12. Third-Party Materials

The Application may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising ("Third-Party Materials"). You acknowledge and agree that XpertSea is not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. XpertSea does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third parties' terms and conditions.

13. Term and Termination

(a) The term of Agreement commences when you download the Application and will continue in effect until terminated by you or XpertSea as set forth in this Section 12.

(b) You may terminate this Agreement by deleting the Application and all copies thereof from your Mobile Device.

(c) XpertSea may terminate this Agreement at any time without notice if it ceases to support the Application, which XpertSea may do in its sole discretion. In addition, this Agreement will terminate immediately and automatically without any notice if you violate any of the terms and conditions of this Agreement.

(d) Upon termination:

all rights granted to you under this Agreement will also terminate; and
you must cease all use of the Application and delete all copies of the Application from your Mobile Device and account.

(e) Termination will not limit any of XpertSea's rights or remedies at law or in equity.

14. Disclaimer of Warranties

The application is provided to you "as is" and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, XpertSea, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the application, including all implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice. Without limitation to the foregoing, XpertSea provides no warranty or undertaking, and makes no representation of any kind that the application will meet your requirements, achieve any intended results, be compatible, or work with any other software, applications, systems, or services, operate without interruption, meet any performance or reliability standards, or be error-free, or that any errors or defects can or will be corrected.

Some jurisdictions do not allow the exclusion of or limitations on implied warranties or the limitations on the applicable statutory rights of a consumer, so some or all of the above exclusions and limitations may not apply to you.

15. Limitation of Liability

To the fullest extent permitted by applicable law, except for any damage arising from its gross fault, gross negligence or willful misconduct, in no event will XpertSea or its affiliates, or any of its or their respective licensors or service providers, have any liability arising from or related to your use of or inability to use the application or the content and services for:

(a) property damage, lost profits, cost of substitute goods or services, loss of data, loss of goodwill, business interruption, computer failure or malfunction, loss of clients or expected clients, damages for failure to realize expected savings, legal fees and costs and any other commercial or financial losses of any kind; and

(b) direct damages caused by your personal fault or negligence.

The foregoing limitations will apply whether such damages arise out of breach of contract, extracontractual liability or tort (including negligence), or otherwise and regardless of whether such damages were foreseeable or XpertSea was advised of the possibility of such damages. Some jurisdictions do not allow certain limitations of liability so some or all of the above limitations of liability may not apply to you.

16. Indemnification

You agree to indemnify, defend, and hold harmless XpertSea and its officers, directors, employees, agents, affiliates, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys' fees, arising from or relating to your use or misuse of the Application or your breach of this Agreement, including but not limited to the content you submit or make available through this Application.

17. Severability

If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

18. Governing Law

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.

19. Entire Agreement

This Agreement and our Privacy Policy constitute the entire agreement between you and XpertSea with respect to the Application and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Application.

20. Waiver

No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

21. Notices

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 XpertSea’s case, such communication is to be made to the following addresses: 1365 Ave Galilee, suite 100, Quebec, QC, G1P 4G4, Canada or support@xpertsea.com. 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 20.

22. Force Majeure

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, national or local sanitary restrictions, 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.

XpertSea Portal Terms of Use

Last updated: May 2019

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:

1. DEFINITIONS AND INTERPRETATION

1.1 Definitions

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;

1.2 Documents Forming Agreement

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.

1.3 Order of Precedence

The provisions of a Supplementary Agreement will have precedence over any incompatible corresponding provision of this Agreement.

2. THE XPERTSEA SYSTEM

2.1 Provision of Online Service

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.

2.2 Availability

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.

2.3 Technical Support

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.

2.4 Account

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.

2.5 Customer Responsibilities

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.

2.6 Use and Protection of Customer Data

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.

2.7 Third-Party Web Sites, Products and Online Service

If Customer elects to integrate Third Party Components with the Online Service, Customer agrees that: (i) its use of Third Party Components must at all times comply with the terms of use governing such offerings, and (ii) XpertSea has the right to send or retrieve Customer Data to and from such Third Party Components for purposes of delivering the Online Service purchased by Customer. Customer understands and agrees that the availability of certain features or functionality of the Online Service, may be dependent on the corresponding availability of Third Party Components or specific features and functionality of Third Party Components. XpertSea will not be liable to Customer or any third party if changes in Third Party Components cause the unavailability of the Online Service or any feature or functionality of the Online Service. XpertSea does not make any representations or warranties regarding any such Third Party Components. Should Customer desire that the Online Service send or retrieve Customer Data to or from Third Party Components or to enable interoperability between the Online Service and such Third Party Components, Customer will promptly provide XpertSea authorizations, passwords or other user credentials to the relevant Third Party Component(s) ("XpertSea Access Codes"). XpertSea will not share, reassign, divulge or disclose any XpertSea Access Codes except to XpertSea employees or authorized contractors specifically engaged in the performance of the Online Service. XpertSea Access Codes constitute Customer's Confidential Information under this Agreement.

2.8 Software; General

(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.

2.9 Software – Permitted Uses and Restrictions

(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.

3. FEES AND PAYMENT TERMS

3.1 Fees

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.

3.2 Invoices and Payment

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.

3.3 Overdue Charges

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.

3.4 Suspension of Service

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.

3.5 Payment Disputes

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.

3.6 Taxes

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.

4. PROPRIETARY RIGHTS

4.1 Equipment, Software and Online Service

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.

4.2 Customer Data

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.

4.3 Aggregate Data and Analyses

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.

5. CONFIDENTIALITY

5.1 Definitions

"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.

5.2 Treatment of Confidential Information

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.

5.3 Compelled Disclosure

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.

6. WARRANTY; DISCLAIMER

6.1 Warranty

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).

6.2 Disclaimers

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.

7. INDEMNIFICATION

7.1 Indemnification by XpertSea

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.

7.2 Indemnification by Customer

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.

7.3 Conditions

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.

8. LIMITATION OF LIABILITY

8.1 Limitation of Liability

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.

8.2 Exceptions

The limitations and exclusions of Sections 8.1 and 8.2 above do not apply to either party's indemnification obligations.

9. TERM AND TERMINATION

9.1 Term of Subscription to Online Service

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").

9.2 Termination for Convenience

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.

9.3 Termination for Cause

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.

9.4 Retrieval of Customer Data

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.

9.5 Effect of Termination

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.

10. GENERAL

10.1 Relationship

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.

10.2 Entire Understanding; Modifications

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.

10.3 Waiver

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.

10.4 Severability

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.

10.5 Governing Law and Venue

10.6 Publicity

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.

10.7 Assignment

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.

10.8 Notices

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 support@xpertsea.com. 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.

10.9 Force Majeure

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.

ANNEX A

1. SERVICE LEVELS

1.1 Help Desk Response and Resolution Times

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:

TIERS	TARGET RESPONSE TIME	TARGET RESOLUTION TIME
T1	12 hours	24 hours
T2	24 hours	48 hours
T3	24 hours	5 business days
T4	24 hours	No resolution time

For the purposes of this Section, the support tiers and corresponding description referred to in the table above have the following meanings:

Tier 1 is the first point of contact and handle anything that relates to the products, from an overview of how it works, basic setup. Tier 1 issues are meant to be handled quickly.
Tier 2 is the point of contact Xpertsea’s office. It is a more in-depth technical support level than Tier 1. Support in this realm of knowledge are responsible for assisting Tier 1 personnel in solving basic technical problems and for investigating elevated issues by confirming the validity of the problem and seeking for known solutions related to these more complex issues.
Tier 3 might involve different engineering teams that are responsible of handling more complex issues that require in-depth knowledge of the product or a deeper technical understanding of it. Things like resolving issues related to fixing the data, making patches and anything else that requires a deeper facility with the underlying technology.
Tier 4 is the highest level of technical support, tackling the toughest issues. No time of resolution.