Tower Cloud Commercial Terms
SOFTWARE AS A SERVICE AGREEMENT
PLEASE READ THIS SEQERA LABS SOFTWARE AS A SERVICE (SAAS) AGREEMENT (“TERMS”) CAREFULLY BEFORE USING THE SAAS SERVICES OFFERED BY SEQERA LABS S.L. (“Seqera Labs”). BY USING THE SAAS SERVICES, AND/OR SIGNING AN ORDER FORM, YOU (“CLIENT”) ARE CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THESE TERMS. THESE TERMS INCLUDE AND INCORPORATE ANY APPLICABLE WRITTEN ORDER FORM. YOU AGREE TO BE BOUND BY THESE TERMS (TOGETHER WITH ALL ORDER FORMS AND PURCHASE ORDERS, THE “AGREEMENT”) TO THE EXCLUSION OF ALL OTHER TERMS. YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO ENTER INTO THIS AGREEMENT.
This agreement is between SEQERA LABS S.L. (“Seqera Labs”) and the Client named below.
SCOPE: This agreement governs the provision of the following Seqera Labs SaaS Service and Support provided to the Client. In this sense:
- SaaS Service means the software hosting and related services that Seqera Labs agrees to provide to the Client through the product “Tower Cloud”, for the Client to access and use the Software, as well as the infrastructure for providing such access and use during the Subscription Term.
- Software refers to any or both of the following Software developed and distributed by Seqera Labs: Nextflow Tower Enterprise and the Nextflow Enterprise Extensions, as well as any additional software to which the Client is provided access as part of the SaaS Service, including any updates or new versions.
- Support refers to the support and maintenance services provided by Seqera Labs to the Client pursuant to this SaaS Service for up to the number of users specified on the applicable Order Form and/or Purchase Order (designated supports contacts).
LICENSE TO USE THE SAAS SERVICES. Subject to the terms and conditions of this Agreement and in accordance with the restrictions and exceptions set forth herein and per further licensing conditions as specified on the applicable Order Form and/or Purchase Order, Seqera Labs grants the Client, a non-exclusive, non-transferable (with no right to sublicense or resell), non-assignable, worldwide right and license to access and use the SaaS Service and Software solely for its business purposes and limited to the maximum number of named Client’s Users that may use the Software on the SaaS Service as set out in the Order Form.
SUBSCRIPTION TERM / ENTRY INTO FORCE. The SaaS Service is provided on a subscription basis and shall enter into force upon the effective date that is specified on the applicable Order Form and/or Purchase Order or, in its absence, the date that this agreement is electronically accepted by mail confirmation, click accepted or, if signed in hard copy by the parties, the date of the last signature. The term of any subscription shall be 12 months unless otherwise specified in the Order Form and/or Purchase Order.
RESTRICTIONS. The Client acknowledges that, except for the limited license granted hereunder:
a) The SaaS Service, Software and Support contains valuable, confidential, and proprietary information, and constitute the intellectual property of Seqera Labs and/or its third-party Licensors. Client also agrees that the materials and all Intellectual Property Rights therein and thereto are the exclusive property of Seqera Labs and/or its third-party Licensors from whom Seqera Labs has obtained rights to use certain portions contained therein;
b) will have no right and will not, nor will it authorize or assist others to remove or modify any Seqera Labs markings or restrictive legends placed in or generated by the Software;
c) will have no right and will not, nor will it authorize or assist others to: (i) copy or republish the SaaS Service or Software , (ii) make the SaaS Service or Software available to any person other than the maximum number of named Client’s Users that may use the Software on the SaaS Service as set out in the Order Form (iii) modify or create derivative works based upon the SaaS Service (iv)disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Software or otherwise discern the source code of the Software except and solely to the extent permitted under applicable law notwithstanding this restriction, or (iv) use or access the SaaS Service to provide service bureau, time-sharing or other computer hosting services to third parties (v) Access the SaaS Services or use the Documentation in order to build a similar product or competitive product.
d) this Agreement does not create any right for the Client or the Client’s affiliates in the techniques and ideas embodied and expressed in the SaaS Service, including without limitation the structure, sequence, and organization of the Software, other than their use in product and service offerings of Client based on the Software.
OWNERSHIP AND RETENTION OF RIGHTS. Seqera Labs reserves all rights not expressly granted. Seqera Labs and/or its third-party Licensors are the owners of all intellectual property rights, including patents, trademarks, copyrights, and trade secrets rights used in the SaaS Service, Software, and the Support. Seqera Labs may also, in its sole discretion add, delete, or change some or all the features included within the SaaS Service, and may change requirements for authorized users and communicate such changes to any authorized users, at any time without affecting any commitments previously agreed to in this Agreement.
CONFIDENTIALITY. Confidential Information means all proprietary or confidential information that is disclosed to the recipient by the discloser, and includes, among other things: any and all information relating to the SaaS Service, Software or Support provided by Seqera Labs (including without limitation, pricing information). The parties agree to hold each other’s Confidential Information in confidence. The obligations of the recipient of Confidential Information shall remain in effect from the time of disclosure until 5 years after the expiration or termination of this Agreement. Each party shall be responsible for any breaches of Confidential Information by any of its employees, affiliates, attorneys, accountants, agents, contractors, or consultants. Each party shall promptly report to the other any unauthorized disclosure or use of the other’s Confidential Information of which the disclosing party becomes aware.
FEES and PAYMENT. Client’s fees and payment terms are determined by the applicable Order Form and/or Purchase Order and will be paid within 30 days of the invoice date unless otherwise specified on the applicable Order Form and/or Purchase Order, in a timely manner as to direct wire transfer to the bank account specified by Seqera Labs, without deductions or charges of any kind. In particular, the license fees are exclusive of any taxes. The Client will be responsible for all taxes, including sales or use taxes, VAT, export or import taxes, excluding taxes on Seqera Labs’ net income. The fees for this Agreement are subject to annual increases, which will be effective beginning upon the first day of each Renewal Term. Seqera Labs will notify the Client of any increase prior to the expiration of the then-current term. If the Client does not agree, it may terminate this Agreement being effective on the expiration of the then-current Subscription Term.
Except in the case of overpayment due to an error or termination by breach by Seqera Labs, all fees paid by the Client are non-refundable and cannot be set off or abated against any other sums due or payable.
If any payment is not completed in due course for reasons of the Client (e.g. Direct Debit is canceled), the Client shall pay a sum of 25.00 EUR per failed payment attempt, on top of pending fees, without prejudice to Seqera Labs recovering any additional financial costs which this return may have generated. The Client will pay Seqera Labs an additional sum equivalent to the legal interest rate prevailing at that time increased by 3% per annum or the maximum amount permitted by applicable law, whichever is less, on any license fees not fully paid when due under this Agreement until any such amount is paid in full.
Seqera Labs warranty. Seqera Labs warrants, for the Client’s benefit alone, that during the term of the Subscription Term the SaaS Service will substantially conform in all material respects to its operating instructions and documentation and that it will be provided in a professional manner consistent with general industry standards. Seqera Labs also warrants: (i) that has the valid right and authority to grant to the Client the rights and licenses in this Agreement (ii) that the SaaS Service will be compatible and will run together with such of the Client’s hardware and software components as are stated to be supported in the SaaS Service’s documentation and operating instructions during the term of the SaaS Service (iii) that it will use reasonable technical means to ensure that the SaaS Service provided to the Client does not contain computer viruses (iv) that has not intentionally included any code, routines or devices designed to disable, damage, impair, erase, deactivate, or electronically repossess the Software or other software or data.
Seqera Labs shall be under no obligation to correct or replace the SaaS Service or refund any fees if:
a) reasonable proof of the claimed breach of this warranty cannot be reproduced by Seqera Labs, or
b) the Client has not reported to Seqera Labs existence and nature of such nonconformity or defect within a reasonable time from discovery thereof, or
c) the SaaS Service has not been used as contemplated in its operating instructions, this Agreement, or with any instruction issued by Seqera Labs, or
d) the nonconformity or defect in the SaaS Service was caused by hardware or third-party software malfunctions or failure.
Seqera Labs disclaims all warranties not expressly stated, including without limitation the warranty of title, merchantability, and fitness for a particular purpose, that the SaaS Service is without defect or error, or that the SaaS Service will operate with any hardware or software not specified in the SaaS Service documentation or operating instructions and that the operation of the SaaS Service will be without interruption.
Seqera Labs may schedule service windows on a regular and emergency basis to perform maintenance on the system. Seqera Labs will make commercially reasonable efforts to provide advance notice to the Client.
Client warranty. The Client represents and warrants that: (i) Client is trained as to the operation of the Software and SaaS Service prior to first use, understands the risks associated therewith, and possesses any and all software licenses, approvals, permissions, and authorizations necessary to use the SaaS Service, (ii) it will maintain an Internet connection with sufficient bandwidth to support communication connections with the SaaS Service and (iii) Client owns or otherwise has the valid right, by contract or otherwise to deliver to Seqera Labs the Client data and Seqera Labs may use the Client data as contemplated by this Agreement without violating any applicable law, rule or regulation or the proprietary rights of any third party, including patents, copyrights, trade secrets, or any license, sublicense, covenant or contract with any third party.
DATA PROTECTION. All Client’s records and data in whatever form (the “Client Data”) are the property of the Client. The Client hereby grants (and shall cause each user to grant) to Seqera Labs a worldwide, non-exclusive, royalty-free license to use, copy, access, process, reproduce, perform, display, modify, distribute and transmit the Client Data for the purpose of providing the SaaS Service to the Client and to improve the system, Software and/or services.
With regard to the System and those locations where any Client Data is stored under the control of Seqera Labs, Seqera Labs will use commercially reasonable efforts to maintain and enforce safety, as well as physical and digital security procedures that are at least equal to industry standards for such types of service locations. Seqera Labs will use commercially reasonable efforts to secure the System against breaches of security measures it deploys and will rectify any such breaches that occur of which Seqera Labs is aware.
TERMINATION. Either party may terminate this agreement upon a material breach of the other party after a 30 days notice/cure period, if the breach is not cured during such time period. Seqera Labs may also terminate this Agreement in the event that Client fails to make any payment due hereunder (or under any other agreement between the parties) and such failure continues for 30 days after notice of such non-payment is given to Client by Seqera Labs. Also, Seqera Labs reserves the right to suspend delivery of the SaaS Service if Seqera Labs reasonably concludes that the Client or its users are causing immediate and ongoing harm to Seqera Labs or others. In the extraordinary case that Seqera Labs must suspend delivery of the SaaS Service, Seqera Labs shall immediately notify the Client of the suspension and the parties shall diligently attempt to resolve the issue. Seqera Labs shall not be liable to Client or to any third party for any liabilities, claims or expenses arising from or relating to any suspension of the SaaS Service in accordance with this Section.
Consequences of termination.
a) Upon termination of this Agreement or expiration of the Subscription Term, Seqera Labs shall immediately cease providing the SaaS Service and all usage rights granted under this Agreement shall terminate.
b) Upon termination of this agreement is made by Seqera Labs, the Client must pay all the sums that would have been payable to Seqera Labs at the End Date and discontinue using the SaaS Service.
c) Upon termination of this agreement by the Client, all sums that would have been payable by the Client to Seqera Labs up to the date of the Client’s notice of such breach to Seqera Labs shall remain payable, but all sums payable after the date of notice of such breach shall not be payable.
d) In the event of termination other than for non-payment or breach of Intellectual Property Rights by the Client, the Client is entitled to a 3-month wind-down period during which it may continue to use the SaaS Service in accordance with these terms, provided payment of corresponding Fees, and solely for the purpose of smooth transiting out of the SaaS Service in relation to the existing Client (i.e. no new users). In the event the termination is for breach by Seqera Labs, such a 3-month wind-down period shall be for free.
SUPPORT AND MAINTENANCE. Seqera Labs technical support and maintenance services is included with the fees paid under this agreement as generally described in this Section and as specifically described in Appendix A (found at: https://seqera.io/SLA-Appendix-A.pdf) (the “Support”) for the SaaS Service. With respect to the SaaS Service and the Client (and its users), Seqera Labs shall: (a) Provide technical support via electronic mail and/or designated support system. (b) Respond to and resolve all problems, questions and requests as promptly as possible in accordance with the response and resolution times specified in Attachment A for the corresponding severity level (as such levels are also specified in such Attachment) or, if no such times and levels are specified in Attachment A, in accordance with the response and resolution times (for the corresponding severity levels) customarily provided as part of support for similar software; (c) Provide all corrections, new versions, updates, patches and other releases issued by Seqera Labs that correct defects, errors or other problems, as well as provide major update release in order to bring the system up to date or improve its characteristics and provide a secure procedure to download the update (d) at its option, provide the Client with access to pre-release versions of SaaS Service.
LIMITATION OF LIABILITY AND DISCLAIMER OF DAMAGES. Neither party shall be liable to the other party for any indirect, incidental, special, or consequential damages (including, without limitation, any damages arising from loss of use or lost business, revenue, profits, data, or goodwill) arising in connection with this agreement, whether in an action in contract, tort, strict liability or negligence, even if advised of the possibility of such damages. Neither party’s liability to the other party for direct damages shall exceed the total amount the Client has paid Seqera Labs under this agreement.
INTELLECTUAL PROPERTY INDEMNITY. Seqera Labs shall defend, indemnify and hold the Client and the Client’s affiliates harmless against any damages, cost, and expenses arising out of any third party claim or cause of action that any of the SaaS Service infringes or misappropriates a patent, copyright, trade secret or other intellectual property rights (an “Infringement Claim”), provided that: (a) promptly notifies Seqera Labs in writing of the claim within 30 days after receipt of notice of any Infringement; and (b) allows Seqera Labs to control, and cooperates with Seqera Labs in, the defense and any related settlement.
If any Infringement Claim is made or (in Seqera Labs’ sole judgment) is likely to be made, Seqera Labs may, at its discretion i) obtain the right for the Client to continue to use the affected parts of the SaaS Service, or ii) modify or replace the affected parts of the SaaS Service, provided the performance and features thereof are not adversely affected in any material manner.
Seqera Labs shall have no obligation to the Client in respect of any Infringement Claim if it arises solely from i) modification of the SaaS Service by any entity or person other than Seqera Labs or its contractors, or; ii) the Client’s operation or use of the SaaS Service in combination, operation, or use with any product, data, or apparatus not specified or contemplated by the operating instructions of the SaaS Service, or iii) The Client’s use of the SaaS Service in a manner not authorized or contemplated by either the operating instructions of the SaaS Service, by this Agreement, or by other instruction issued by Seqera Labs, or iv) claims of infringement of any intellectual property in which the Client or any of its affiliates has an interest.
GOVERNING LAW. This Agreement is governed and interpreted in accordance with the laws of Spain, and parties hereby submit to the exclusive jurisdiction of the courts of the City of Barcelona (Spain), and the Client hereby irrevocably consents to the exclusive jurisdiction and venue of these courts.
(a) Audit. Seqera Labs may, at its expense, upon reasonable prior written notice to the Client and during standard business hours, audit the Client’s use of the SaaS Service no more than once each calendar year to assure compliance with the terms of this Agreement. If an audit reveals the Client has underpaid fees to Seqera Labs, the Client shall be invoiced for such underpaid fees based upon Seqera Labs’s price list in effect at the time the audit is completed. The cost of the audit will be paid by the Client if the audit discloses that the amount of underpayment exceeds 5% of the amount due.
(b) Entire Agreement. This agreement, and all orders as the Attachment hereto and the related Order Form and/or Purchase Order, constitute the entire agreement between the parties, and supersedes all prior or contemporaneous negotiations, representations, or agreements, whether oral or written, related to this subject matter. The Client accepts that any and all representations, undertakings, and warranties which are not expressly included shall have no force or effect, and the Client accepts that it has not been induced to enter into this Agreement by any such matters.
(c) Modification Only in Writing. No modification or waiver of any term of this agreement is effective unless signed by both parties.
(d) Assignment. This Agreement is personal in nature to the Client and may not be assigned by the Client. Seqera Labs may partially or wholly assign or subcontract any rights and obligations hereunder to any company within its corporate group, on notice to the Client. Technical and commercial management of the Client hereunder may be assigned to a Seqera Labs Partner. This Agreement and related orders may be assigned upon notice as part of a merger, or sale of all or substantially all of the business or assets, of Seqera Labs or the Client.
(e) Dispute Resolution. If a dispute arises involving any performance under this Agreement, the party believing itself aggrieved (“Invoking Party”) will try a dispute negotiation by noticing the other party. The parties will use their best efforts to arrange personal meetings and/or telephone conferences as needed, for seven (7) days in which to attempt to resolve the dispute. If a resolution is not achieved by negotiators within seven days of such notice, then either party may bring or file an arbitration proceeding or file suit to resolve the dispute in a court of competent jurisdiction and venue.
(f) Force Majeure. Neither party shall be liable for delay in any of its performance hereunder due to causes beyond its reasonable control, including but not limited to, an act of God, war, acts of terrorism, or natural disaster.
(g) Independent Contractors. The parties are independent contractors with respect to each other.
(h) Enforceability. If any term of this agreement is invalid or unenforceable, the other terms remain in effect.
(i) Notice. Notices from the Client regarding this agreement, general renewals, and general requests may be provided by email to firstname.lastname@example.org or such other address as SEQERA LABS shall subsequently notify the Client. Original paper notices to SEQERA LABS shall be sent to the following postal address:
SEQERA LABS S.L.
Carrer Ramon Turro, 142
08005 Barcelona, SPAIN
Notices to the Client shall be sent to the contact information the Client has provided.