Seismic Exchange Terms of Service

Welcome to the Seismic Exchange! The Seismic Exchange is an online resource for searching, browsing, and accessing software services or applications (“Apps”) that are designed to interact with Seismic’s software-as-a-service (the “Seismic Cloud”).

By using the Seismic Exchange, You agree that Your access to and use of the Seismic Exchange is governed by the terms and conditions described in these Exchange Terms (the “Exchange Terms”), which You acknowledge represent a binding legal agreement between You and Seismic Software, Inc. (“Seismic”). If You are using the Seismic Exchange or placing an Order (defined below) on behalf of a company or other organization or deploying or accessing Apps, You acknowledge that You are agreeing to these Exchange Terms on behalf of that company or organization and represent that You have the authority to bind that company or organization to these Exchange Terms. In such case, the terms “You” and “Your” will refer to that company or organization. If You do not have that authority, or if You do not agree with these Exchange Terms, You may not use and must leave the Seismic Exchange.

By placing an Order for an App, or accessing or using the Seismic Exchange, You indicate Your assent to be bound by these Exchange Terms. If You do not agree to these Exchange Terms, do not place an Order or use or access the Seismic Exchange.

1. Introduction

1.1. Seismic and Third-Party Apps. The listing for each App will identify the provider of the App (“Developer”), which may be Seismic or a third party. Apps for which Seismic is the Developer are “Seismic Apps,” and Apps for which the Developer is a third party are “Third-Party Apps”. Developers who are third parties create, own, maintain, and are otherwise responsible for their Third-Party Apps as further described in these Exchange Terms.

1.2. Installing Apps. In the Seismic Exchange, You can search for, browse, and access Apps for use with the Seismic Cloud. Some Apps can be installed directly into Your Seismic Cloud tenant by clicking the “Install” button. For others, You will need to work directly with a Seismic representative to order, configure, and install the App.

1.3. Orders. In these Exchange Terms, “Order” means any order, purchase, installation, trial, download or enablement of an App (including renewals and upgrades), whether through the Seismic Exchange or through other processes or interfaces we make available. All Orders are subject to these Exchange Terms. Each Order will identify the Developer, Your authorized scope of use of the App (such as the applicable platform or capacity limitations, like number of seats) the license or subscription term, as applicable, and applicable fees and payment terms (if any). Once You complete Your Order, Seismic will provide You access to the applicable App(s), including any relevant license or access keys.

1.4. Paid Apps. Some Apps are made available at no charge, and others require payment of fees. To receive access to paid Apps, You must pay Seismic the fees, including all taxes, indicated at the time of Your Order. Terms for renewals, including pricing, will be described within the App’s listing on the Seismic Exchange and/or the Order.

2. Use of Apps.

2.1. Applicable Terms. Without limiting the disclaimers, restrictions or other provisions in these Exchange Terms, usage of Apps is subject to the license or subscription terms and usage limits, privacy policies and other terms and conditions specified by the applicable Developer (“Developer Terms”). Developer Terms may be included on the App’s listing page, presented through the Order process, or available through some other means (including within the App). You may not use an App if You do not agree to the relevant Developer Terms.

(a) Third-Party Apps. Third-Party Apps are subject to the third party’s Developer Terms, not the Seismic Terms. By ordering, installing or enabling any Third-Party App, You are entering into the Developer Terms directly with the applicable third party Developer. Seismic is not a party to, or responsible for compliance with, any third party Developer Terms. Notwithstanding anything else, You acknowledge and agree that: (a) You must use Your own discretion when You access or deploy Third-Party Apps through the Seismic Exchange (or otherwise access any third-party services); (b) Your use of Third-Party Apps is governed by and subject to the terms and conditions and privacy policies associated with such Third-Party Apps as provided by the applicable third-party Developer; and (c) Seismic does not own or control any Third-Party Apps or third-party Developers, and You will not hold Seismic responsible or liable for any such Third-Party Apps or acts or omissions of third-party Developers, under any circumstances or any theory of liability. Seismic does not in any way warrant the accuracy, reliability, security, completeness, usefulness, non-infringement, or quality of any Third-Party App (including without limitation the content contained therein), even if Seismic has reviewed, certified, or approved the Third-Party App. You agree that You bear all risks associated with using or relying on Third-Party Apps. If You have any questions about Third-Party Apps or the terms that govern the use of any Third-Party App, You should contact the applicable third-party Developer directly.

(b) Seismic Apps. If Seismic is the Developer of the App, the terms and conditions set forth at https://seismic.com/terms-of-service/ (the “Seismic Terms”) and privacy policy set forth at https://seismic.com/privacy-policy/ (“Privacy Policy”) apply to Your installation and use of such App. In event of a conflict between the Seismic Terms and any other agreement between You and Seismic relating to Seismic products and services, the Seismic Terms will control as to each party’s rights and responsibilities related to the App itself.

2.2. Support and Maintenance. Any support and maintenance of Third-Party Apps will be provided by the applicable Developer and only to the extent described in the applicable Developer Terms. Seismic is not responsible for any support and maintenance for Third-Party Apps, and a Developer’s failure to provide any support or maintenance does not entitle You to any refund. If Seismic is the Developer, it will provide any support and maintenance in accordance with the Seismic Terms.

2.3. Reservation of Rights. You may not modify, reverse engineer, decompile or disassemble any App in whole or in part, or create any derivative works from or sublicense any rights in any App, unless otherwise expressly authorized in writing by the applicable Developer. Except for the rights explicitly granted to You in these Exchange Terms and in the Developer Terms for each App, all right, title and interest (including intellectual property rights) in the Seismic Exchange are reserved by Seismic, and all right, title and interest (including intellectual property rights) in the Apps are reserved and retained by their respective Developers and licensors. Apps are provided on a license or subscription basis, not sold, and You do not acquire any ownership rights in the Seismic Exchange or the Apps.

3. Data Collection and Sharing.

3.1. Order Information. If You access or install an App through Seismic, Seismic will provide the applicable Developer with the information You provide in completing the Order, such as Your name, company, addresses (including e-mail address) and phone number.

3.2. Third Party Developer Use of Data. If You place an Order for a Third-Party App, You authorize Seismic to grant the applicable third-party Developer the right to access or use Your data from Your Seismic Cloud account. This may include transmitting, transferring, modifying or deleting such data, or storing such data on Developer or third-party systems. Any information that a third-party Developer collects, stores, accesses, or processes from You or the systems You use to access or deploy the App will be subject to the applicable Developer Terms, privacy notice, or similar terms that such third-party Developer provides to You, and not to the Seismic Privacy Policy. Seismic is not responsible for any access, use, transfer or security of data or information by third-party Developers or by Third-Party Apps, or for the security or privacy practices of any third-party Developer or such Developer’s Third-Party Apps and third-party processors. You are solely responsible for Your decision to permit any third-party Developer or Third-Party App to access or use data to which You’ve granted access. 

3.3. Seismic Use of Exchange Data. Any data that Seismic collects from You based on Your use of the Seismic Exchange and Your Orders, or that it receives from third-party Developers on Your behalf, is subject to the Seismic Privacy Policy.

3.4. Analytics and Usage Data. In addition, You authorize the Developer and Seismic (if Seismic is not the Developer) to collect and use technical data and related information (including technical information relating to Your device, system, and the App), in non-personally identifiable form, to facilitate the provision of software updates, product support, marketing efforts and other services to You related to the App. Developer and Seismic (if Seismic is not the Developer) may each use this information, as long as it is in a form that does not personally identify individual users, to improve their respective products or to provide services or technology to You.

4. Your Responsibilities.

4.1. Representations and Warranties. You (including anyone acting on Your behalf) represent and warrant that You have all necessary right, power and authority (i) to enter into and be legally bound by these Exchange Terms, (ii) to place any Orders, and (iii) to authorize Developers to access and use Your data and information as described in Section 3, all without violation of any other agreements or policies.

4.2 Compliance with Law. You must use the Seismic Exchange and Apps in compliance with all applicable laws.

4.3. Indemnification. You agree to indemnify, defend (at Seismic’s request) and hold harmless Seismic, its affiliates, and its and their officers, agents and employees from any claims by third parties, and any related damages, losses or costs (including reasonable attorney fees and costs) arising out of Your violation of these Exchange Terms or the applicable Developer Terms, Your violation of any rights of a third party, or any content You upload or submit to the Seismic Cloud or any Developer through an App. You may not settle any such claim without Seismic’s prior written consent.

5. Term and Termination.

5.1. For Cause. Your rights hereunder will automatically terminate upon Your failure to comply with any of the provisions in these Exchange Terms. In case of such termination, You must cease all use of the Seismic Exchange, and Seismic may immediately revoke Your access to the Seismic Exchange without notice to You and without refund of any purchases.

5.2. Discontinuation of Exchange and/or Certain Apps. Seismic may discontinue the Seismic Exchange at any time, in its sole discretion, without prior notice to You. In such event, these Exchange Terms will automatically terminate. In addition, Seismic or the applicable third-party Developer may remove an App from the Seismic Exchange or update or modify Apps at any time, with or without notice to You.

5.3. Survival. The following Sections will survive any termination or expiration of these Exchange Terms:  2.1(b) (Seismic Apps) (if applicable for continued use of Seismic Apps), 2.3 (Reservation of Rights), 3 (Data Collection and Sharing), and 4 (Your Responsibilities) through 8 (General).

6. Important Disclaimers and Limitations of Liability.

6.1. Disclaimer of Warranties. To the maximum extent permitted by law, Seismic offers the Seismic Exchange and all Third-Party Apps “AS IS” and “AS AVAILABLE”, and Seismic hereby disclaims all warranties, whether express, implied or statutory, including but not limited to any implied warranties of title, non-infringement, merchantability or fitness for a particular purpose, relating to the Seismic Exchange, Third-Party Apps, or this Agreement. You may have other statutory rights, in which case the duration of any statutory warranties will be limited to the maximum extent permitted by law.

6.2. Interoperability. Seismic makes no guarantee that any Apps will work properly with the Seismic Cloud or that Apps will continue to work with the Seismic Cloud as they change over time. Some Apps rely on hosted or cloud services provided by the Developer or third parties, and these Apps may not function properly or may become inoperable if those services are discontinued.

6.3. Limitations of Liability. To the maximum extent permitted by law, in no event will Seismic be liable for any direct, indirect, consequential, special, exemplary, punitive or other liability related to the Seismic Exchange or any Third-Party Apps, including for any loss of use, lost or inaccurate data, failure of security mechanisms, interruption of business or costs of delay. If the foregoing disclaimer of direct damages is not enforceable at law for any reason, in no event will Seismic’s aggregate liability to You under these Exchange Terms exceed the greater of (1) the amount You paid to Seismic for the Third-Party App related to Your claim, or (2) fifty dollars (US$50). Some jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages, which means that some of the above limitations may not apply to You. IN THESE JURISDICTIONS, SEISMIC’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.

6.4. Disclaimers and Limitations of Liability for Seismic Apps. Section 6.1 (Disclaimer of Warranties) and 6.3 (Limitations of Liability) do not alter the disclaimers or limitations of liability for Seismic Apps as set forth in the Seismic Terms, which continue to fully apply.

6.5. Basis of Bargain; Failure of Essential Purpose. Seismic entered into these Exchange Terms relying on the limitations of liability, disclaimers of warranty and other provisions relating to allocation of risk herein, and You agree that such provisions are an essential basis of the bargain between the parties. You agree that the waivers and limitations specified in this Section 6 apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Exchange Terms is found to have failed of its essential purpose.

6.6. Seismic Affiliates and Contractors. You acknowledge and agree that Seismic’s affiliates, contractors and service providers may exercise all rights of Seismic under these Exchange Terms, and that all limitations of liability and disclaimers in these Exchange Terms apply fully to and benefit Seismic’s affiliates.

7. Dispute Resolution; Governing Law.

7.1. Governing Law; Jurisdiction. These Exchange Terms will be governed by and construed in accordance with the laws of the State of California, USA, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to these Exchange Terms must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the State or Federal courts in San Diego, California, USA, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in San Diego, California, USA, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.

7.2. Injunctive Relief; Enforcement. Notwithstanding the provisions of Section 7.1(Governing Law; Jurisdiction), nothing in these Exchange Terms will prevent Seismic from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.

7.3. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Exchange Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Exchange Terms regardless of when or where adopted.

8. General.

8.1. Changes to Terms. Seismic may modify these Exchange Terms at its sole discretion by posting the revised terms on the Seismic Exchange. You may be required to click to agree to the modified Exchange Terms in order to continue using the Seismic Exchange, and in any event Your continued use of the Seismic Exchange (including any future Orders) after the effective date of the modifications constitutes Your acceptance of the modified terms. For clarity, the version of these Exchange Terms in place at the time of Your Order will apply for purposes of that Order. Except as provided in this Section 8.1, all changes or amendments to these Exchange Terms require the written agreement of You and Seismic.

8.2. Entire Agreement. These Exchange Terms constitute the entire agreement between the parties with respect to their subject matter and supersedes any and all prior or contemporaneous agreements between the parties with respect to their subject matter. For clarity, this does not limit the Developer Terms, which apply in accordance with Section 2 above.

8.3. Interpretation. If any provision of these Exchange Terms is held invalid by a court with jurisdiction over the parties to these Exchange Terms, such provision will be deemed to be restated to reflect as nearly as possible the original intentions of the parties in accordance with applicable law, and the remainder of these Exchange Terms will remain in full force and effect. Seismic’s failure to enforce any provision of these Exchange Terms will not constitute a waiver of Seismic’s rights to subsequently enforce the provision. In these Exchange Terms, headings are for convenience only and terms such as “including” are to be construed without limitation.

8.4. Assignment. You may not assign or transfer these Exchange Terms. Seismic may freely assign, transfer and delegate its rights and obligations under these Exchange Terms.

8.5. No agency.  Nothing in these Exchange Terms or any Order is intended to, or shall be deemed to, make Seismic Your agent, or authorize Seismic to make or enter into any commitments for You or on Your behalf.

8.6. Export Laws and Regulations. You may not use or otherwise export or re-export the Exchange Apps except as authorized by United States law and the laws of the jurisdiction in which the App was obtained. In particular, but without limitation, Apps may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list or the U.S. Department of Commerce’s Denied Persons, Entity, or Unverified Lists. By using any App, You represent and warrant that You are not located in any such country or on any such list. You agree not to use or provide the Apps for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.