OPENPRISE CUSTOMER LICENSE AGREEMENT
This Customer License Agreement (this “Agreement”) is effective as of the effective date set forth in the initial Subscription Order (“Effective Date”) and is entered into by and between Openprise, Inc. (“Openprise”) a Delaware corporation, and the entity identified in the Subscription Order (“Customer”). As used in this Agreement, “Affiliate” of a party means any entity that controls, is controlled by or is under common control with such party.
Openprise provides the Openprise Orchestration Platform located at www.openprisetech.com, www.openprisecloud.com (the “Sites”), together with the related products, services and documentation to enable customer processing of content (collectively, the “Services”).
1. THE SERVICES
This Agreement applies to Customer’s use of the Services, including any and all content, text, images, software, documents and other materials made available by the Services (the “Content”). Reference to the Services in this Agreement shall unless the context otherwise requires be deemed to include reference to their Content. “Customer Content” means the Content that Customer uploads to and/or inputs into the Services. Subject to the terms of this Agreement, Openprise grants Customer a non-transferable, non-exclusive, license to use the Services for Customer’s internal business use. The rights granted to Customer in this Agreement are subject to the following restrictions: (a) Customer shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Services, or provide, procure or permit third party access to the Services; (b) Customer shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Services; (c) Customer shall not access the Services in order to build similar or competitive service(s), or for any other competitive or public benchmarking purpose; and (d) except as expressly stated in this Agreement, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means.
2. USE OF THE SERVICES AND CONTENT
Customer will (i) provide and maintain accurate, current, and complete information about each employee authorized by Customer to use the Services, as may be prompted by a registration form in the Services, which information will be entered by Customer personnel who are designated as Customer Administrators; (ii) maintain the security of all authorized employee passwords and information; and (iii) immediately notify Openprise in the event Customer believes the account or access to the Services has been compromised. Customer has sole responsibility for adequate protection and backup of data and/or equipment used in connection with the Services.
Customer expressly agrees that Openprise and its Affiliates have no responsibility or control over the Content that Customer, purchases, uploads, posts or otherwise transmits via the Services. Openprise and its Affiliates do not represent, warrant or guarantee the truthfulness, accuracy, quality or reliability of any of the Content posted, displayed, linked to or otherwise transmitted via the Services, or that Customer’s use of the Services will comply with laws applicable to Customer.
Openprise will be free to use or incorporate into any products or services, without any obligation to Customer, any suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Service, except to the extent that such suggestions, enhancement requests, recommendations or other feedback (i) identify Customer or as the source of the information, or (ii) contain any Customer personal information.
3. PAYMENT OBLIGATIONS
Payment terms. Customer agrees to pay the then-current Services fee(s) set forth in the applicable Subscription Order. Openprise will automatically bill Customer’s payment method submitted in ordering the Services on the date the Services are activated. All payments are non-refundable, except as expressly provided in this Agreement. Further, if Customer chooses to purchase Partner Services through the Services, Customer will be required to pay the Partner’s then-current applicable fees for such Partner Services. Customer agrees to pay all Openprise invoices for services used on a NET-30 day basis. Openprise reserves the right to suspend or terminate the use of the Services if payment is not received within the stated grace period. Reactivation of suspended accounts requires the Customer payment accounts to be restored to good standing, in Openprise’s sole discretion. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate if less.
Additional licenses. Customer may increase the number of records by ordering new licenses from Openprise and signing a new Subscription Order. Fees for the increased number of records will be based on the annual per unit fee for each record in the original Subscription Order, unless the increased number of licenses triggers a higher discount, in which event fees for the additional licenses will be the lower per unit rate. Additional licenses for records will be coterminous with the term of the licenses under the initial Subscription Order and the fees for the additional licenses will be prorated accordingly. Openprise will notify the Customer if the number of actual records of the Service exceeds the number of licensed records. Customer will cure the non-compliance by paying the additional license fees within 60 days from the date of written notification of the non-compliance.
Taxes. All amounts payable by Customer under this Agreement are exclusive of any applicable taxes, fees, duties, withholdings and similar amounts, which will be charged separately and paid or reimbursed by Customer, unless Customer has provided a valid tax exemption certificate. Without limiting the generality of the foregoing, Openprise charges sales tax in all jurisdictions where SaaS services are taxable.
4. TECHNICAL SUPPORT AND UPDATES
Openprise provides technical support for the Services in accordance with the Service Level Agreement outlined in (https://www.openprisetech.com/sla/) as long as Customer is entitled to receive support under the applicable Subscription Order and this Agreement. Openprise support is can be reached at email@example.com and (888) 810-7774. Openprise reserves the right to withhold technical support for customers with unpaid invoices.
5. PARTNER SERVICES AND CONTENT
Openprise approved third parties (each, a “Partner”) may make available, for example, through the Data Marketplace or otherwise, third-party services (“Partner Services”) and Content (“Partner Content”) for an additional fee. Customer may have the option to purchase Partner Services directly from the Partner or through Openprise. The availability of these two purchase options will vary by Partner Service. In the event that Customer purchases Partner Services through Openprise such Partner Services will appear as discrete line items on the Openprise Subscription Order and where necessary will be governed by additional terms and conditions.
6. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
As between Openprise and Customer, the Services, including all Content (other than Customer Content), and all intellectual property rights in and to the same, is owned by Openprise, its Affiliates, or its or their suppliers. Customer must not remove or modify any copyright or trademark notice, or other notice of ownership present on the Services. Except for the licenses expressly granted to Customer in this Agreement, Openprise reserves all right, title and interest to the Services, including any modifications, enhancements, improvements, customizations, maintenance releases, revisions or derivative works thereof. There is no implied license, right or interest granted in any copyright, patent, trade secret, trademark, invention or other intellectual property right under this Agreement.
“Confidential Information” means any and all information related to a party’s business that is labeled or identified as “confidential” or “proprietary”; or otherwise is of such a type or disclosed in such a way that a reasonable person would understand that the information disclosed is confidential or proprietary, including software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies. Without limiting the foregoing, the Services, their structure, organization, code, and related documentation are the “Confidential Information” of Openprise. Each party agrees (i) to hold the other party’s Confidential Information in strict confidence, (ii) not to disclose such Confidential Information to any third parties, except as described below, and (iii) not to use such Confidential Information except for the purposes of this Agreement. Each party may disclose the other party’s Confidential Information to its responsible employees and contractors with a bona fide need to know, but only to the extent necessary to carry out the purposes of this Agreement, and only if such employees and contractors are subject to a nondisclosure agreement sufficient to protect the other party’s Confidential Information hereunder. The restrictions set forth in this paragraph will not apply to any Confidential Information that the receiving party can demonstrate (a) was known to it prior to its disclosure by the disclosing party; (b) is or becomes publicly known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such disclosure without restriction; (d) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. The parties agree that a breach of this paragraph may cause irreparable damage which money cannot satisfactorily remedy and therefore, the parties agree that in addition to any other remedies available at law or hereunder, the disclosing party will be entitled to seek injunctive relief for any threatened or actual disclosure by the receiving party. If there is any conflict between this paragraph and any separate non-disclosure agreement entered into by the parties, the separate non-disclosure agreement shall control.
7. PRIVACY AND SECURITY
Compliance with Privacy Laws. “Privacy Laws” means all laws and regulations governing processing of personal data that apply to a party in the relevant jurisdiction(s) under this Agreement. Each party will at all times comply with all Privacy Laws applicable to it. Openprise will only use Customer personal data in the manner permitted by this Agreement and all Privacy Laws; provided, however, that:
- Customer hereby authorizes Openprise and its Affiliates to use Customer personal data solely to provide the Services to Customer, and authorizes Openprise and its Affiliates to utilize subprocessors and contractors solely to provide the Services to Customer in accordance with this Agreement (Openprise is fully responsible for such Affiliates’, subprocessors’ and contractors’ compliance with this Agreement); and
- Customer hereby represents and warrants that, to the extent required by Privacy Laws, Customer has obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order for Customer to grant the authorizations in Section 7(a). Customer will have sole responsibility for the accuracy, quality, and legality of Customer personal data and the means by which such personal data was acquired and transferred to Openprise.
Security of the Services. Throughout the term of this Agreement, Openprise will maintain a data security program for the Services that includes reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any personal data processed or stored by the Services.
8. TERM AND TERMINATION
In general. Unless this Agreement is terminated earlier as set forth herein, the initial term of this Agreement shall begin on the Effective Date and will continue for the duration of the subscription set forth in the initial Subscription Order. Except as otherwise specified in the applicable Subscription Order, each subscription will automatically renew for a term of one (1) year, unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. After the initial term, any per unit subscription fee increase for a renewal term will not exceed five percent (5%) annually unless Customer’s record usage exceeds the maximum licensed number of records, in which case the subscription fee increase will be based on Openprise’s standard tier pricing.
Termination. Either party may terminate this Agreement including all Subscription Orders for cause in the event that the other party commits a material breach of this Agreement (including the obligation to make payments when due) and does not cure such breach within thirty (30) days of receipt of written notice specifying such breach and the intent to terminate.
Effect of termination. Upon any expiration or termination of this Agreement for any reason, Customer will cease to have access to the Services and Content, and all of Customer’s rights herein will cease. However, rights and obligations under the Agreement which by their nature should survive will remain in full effect after termination or expiration of the Agreement, including those of Sections 1, 2, 3 and 6 through 12, inclusive. Openprise will not have any liability whatsoever for any termination of this Agreement, including for termination of Customer’s account or deletion of Customer Content as described below.
Export and Deletion of Customer Content. The Services allow Customer to export and back-up Customer Content at its discretion, and Openprise encourages Customer to do so regularly. Any export or transfer of Customer Content must occur no later than ninety (90) days after expiration or termination of this Agreement. Openprise will assist with one extraction of Customer Content free of charge; Customer will be charged for any other data extraction at Openprise’s prevailing Professional Services rates. Customer understands that any expiration or termination of this Agreement involves deletion of the Customer Content associated therewith from Openprise’s live databases. Regardless of the basis for expiration or termination of this Agreement, Openprise will not be obligated to retain any Customer Content for longer than ninety (90) days after any such expiration or termination, unless otherwise agreed in advance by the parties in writing.
Openprise hereby agrees to defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Services as permitted hereunder infringes or misappropriates the intellectual property rights of a third party (“Claim”), and shall indemnify Customer for any damages finally awarded against, and for reasonable attorney’s fees incurred by, Customer in connection with any such Claim; provided, that Customer (a) promptly gives Openprise written notice of the Claim; (b) gives Openprise sole control of the defense and settlement of the Claim (provided that Openprise may not settle any Claim that adversely affects Customer without Customer’s prior written consent); and (c) provides to Openprise all reasonable assistance, at Openprise’s expense. Notwithstanding the foregoing, Openprise will not be responsible for, and the foregoing indemnity obligation shall not apply to (a) any use of the Services in combination with any other device, product, services, process, equipment, infrastructure or material not furnished or specified by Openprise, if the infringement or misappropriation would not have occurred but for such combination, or (b) any modification of any Services by anybody other than Openprise, if the infringement or misappropriation would not have occurred but for such modification. In the event of any Claim under this paragraph, Openprise may, at its sole option and expense (i) procure for Customer the right to continue to use the Services, (ii) replace or modify the Services to make the use non-infringing; or (iii) terminate this Agreement and refund to Customer any prepaid fees covering the remainder of the term of all Subscription Orders after the effective date of termination.
Customer hereby agrees to indemnify and hold Openprise and its Affiliates harmless from any losses, expenses, costs or damages (including reasonable legal fees, expert fees and other reasonable costs of litigation) suffered or incurred by Openprise and its Affiliates and its and their shareholders, officers, directors, agents, licensors, suppliers, other partners, employees, and representatives arising directly or indirectly from or in any manner related to any claim, demand, or action based upon, Customer Content, Customer’s use of or connection to the Services or API or any Partner Services, Customer’s violation of this Agreement, Customer’s violation of any law or regulation, or Customer’s violation of any rights of another (together, Customer’s “Use”) or Use of the Services and its Content by a third party where Customer has provided, permitted or procured such third party access.
10. DISCLAIMER OF WARRANTIES
TO THE EXTENT PERMITTED BY LAW, OPENPRISE AND ITS AFFILIATES DISCLAIM ALL EXPRESS OR IMPLIED CONDITIONS, REPRESENTATIONS, COVENANTS, AND WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, TITLE, QUIET ENJOYMENT, ACCURACY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. OPENPRISE AND ITS AFFILIATES MAKE NO REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES AS TO THE USEFULNESS, QUALITY, SUITABILITY, TRUTH, ACCURACY, OR COMPLETENESS OF THE SERVICES OR ANY PARTNER SERVICES (INCLUDING ANY PARTNER CONTENT) ACCESSED THROUGH OR PROVIDED THEREON.
11. LIMITATION OF LIABILITY
TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, OPENPRISE AND ITS AFFILIATES ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, PROFESSIONAL SERVICES, OR PARTNER SERVICES, EVEN IF OPENPRISE OR ANY OF ITS AFFILIATES HAVE PREVIOUSLY BEEN ADVISED OF, OR REASONABLY COULD HAVE FORESEEN, THE POSSIBILITY OF SUCH DAMAGES, HOWEVER THEY ARISE, WHETHER IN BREACH OF CONTRACT OR IN TORT (INCLUDING NEGLIGENCE).
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OPENPRISE’S (AND ITS SUPPLIERS’) LIABILITY FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY THOUSAND US DOLLARS ($50,000) OR (B) AMOUNTS CUSTOMER HAS PAID OPENPRISE IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
12. GENERAL TERMS
This Agreement will be governed by and construed under the laws of the State of California without regard to its conflict of laws provisions. The federal and state courts in San Mateo County, California will have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. This Agreement sets forth the entire agreement and understanding of the parties relating to the subject matter hereof and supersedes all prior discussions, proposals and understandings between them. Without limiting the generality of the foregoing, this Agreement will supersede the terms of Customer’s form of purchase order, acknowledgment or other business forms notwithstanding Openprise’s acceptance or acknowledgment of such business forms. No modification of or amendment to this Agreement, nor any waiver of any rights under this Agreement, will be effective unless set forth in writing signed by officers of both parties hereto. Each party shall comply with all export control laws and regulations applicable to it. Neither party may assign this Agreement or any rights or obligations herein without the other party’s prior written consent, not to be unreasonably withheld, except in the event of a merger, acquisition or sale of all or substantially all of its assets, in which case the party may assign this Agreement to the successor without the other party’s consent. The assigning party agrees to give the other party a written notice of the assignment within thirty (30) days after the closing of the definitive transaction. This Agreement will be binding upon and inure to the benefit of the parties hereto, their permitted successors and assigns. If any provision of this Agreement is held to be illegal or unenforceable, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. The failure of either party to enforce its rights under this Agreement at any time for any period will not be construed as a waiver of such rights. Any notices or communication under this Agreement will be in writing and will be hand delivered, sent by registered or certified mail return receipt requested, by nationally-recognized express courier with a tracking system, or by confirmed facsimile transmission to the party receiving such communication, at the receiving party’s address set forth on the applicable Subscription Order, or such other address as a party may in the future specify to the other party.