YOUR AGREEMENT WITH OPENPRISE
Last Updated May 7, 2019
Openprise, Inc. (“Openprise”) provides www.openprisetech.com, www.openprisecloud.com (the “Website”) and related services, products, content and documentation to enable self-services to process customer data (collectively, the “Service”). This document states the End User License Agreement (“Agreement”) under which you may use the Service. Please read this document carefully. This Agreement is applicable to users of the Service, both free and paid accounts. Enterprise terms for private cloud deployments are available upon request from firstname.lastname@example.org. As used in this Agreement, “Affiliate” means any entity that controls, is controlled by or is under common control with Openprise, and “we”, “us” and “our” means Openprise, Inc.
By accessing or using the Service, you are accepting this Agreement and you represent and warrant that you have the right, authority, and capacity to enter into this Agreement. If you do not agree with all of the provisions of this Agreement, do not access and/or use the Service. If you are using the Service on behalf of a company, entity, or organization, you represent and warrant that you are an authorized representative of such company, entity, or organization with the authority to bind it to this Agreement, in which case the terms “you” and “your” shall refer to such entity.
This Agreement is subject to occasional revision, and if we make any substantial changes, we may notify you by sending you an e-mail to the last e-mail address you provided to us (if any) and/or by prominently posting notice of the changes on our Service. Any changes to this agreement will be effective upon the earlier of thirty (30) calendar days following our dispatch of an e-mail notice to you (if applicable) or thirty (30) calendar days following our posting of notice of the changes on our Service. These changes will be effective immediately for new users of our Service. You are responsible for providing us with your most current e-mail address. In the event that the last e-mail address that you have provided us is not valid, or for any reason is not capable of delivering to you the notice described above, our dispatch of the e-mail containing such notice will nonetheless constitute effective notice of the changes described in the notice. Continued use of our Service following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the terms and conditions of such changes.
RIGHT TO DENY OR ACCEPT USERS/REGISTRANTS. Openprise reserves the right to accept or deny any individual or group registration of the Service without explanation or cause.
1. THE SERVICE
This Agreement applies to your use of the Service, including any and all data, text, software, documents and other materials made available by the Service (the “Content”). Reference to the Service in this Agreement shall unless the context otherwise requires be deemed to include reference to its Content. Subject to the terms of this Agreement and any applicable Partner Agreement (as defined below), Openprise grants you a non-transferable, non-exclusive, license to use the Service for your internal business use. The rights granted to you in this Agreement are subject to the following restrictions and those in any applicable Partner Agreement: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, or otherwise commercially exploit the Service; (b) you shall not modify, make derivative works of, disassemble, reverse compile or reverse engineer any part of the Service; (c) you shall not access the Service in order to build a similar or competitive service, or for any other competitive or public benchmarking purpose; and (d) except as expressly stated herein, no part of the Service may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means. Any future release, update, or other addition to functionality of the Service shall be subject to the terms of this Agreement.
If you have registered for a free trial, we will provide the Service to you on a free trial basis during the Trial Period (typically 14 days) specified in the applicable order. Your free trial will end at the end of the Trial Period unless before that date you either have signed a Subscription Order for a paid subscription or extended the Trial Period with Openprise’s written consent.
IN THE EVENT THAT YOU DO NOT HAVE A PAID SUBSCRIPTION BY THE END OF THE TRIAL PERIOD, ANY DATA THAT YOU HAVE ENTERED INTO THE SERVICE DURING THE TRIAL PERIOD, AND ANY CONFIGURATIONS MADE BY YOU TO THE SERVICE DURING THE TRIAL PERIOD, WILL BE PERMANENTLY LOST UNLESS YOU HAVE EXPORTED ALL SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
2. REGISTRATION DATA
In consideration of your use of the Service, you agree to:
- provide accurate, current, and complete information about you as may be prompted by a registration form on the Service (the “Registration Data”);
- maintain the security of your password and identification;
- maintain and promptly update the Registration Data, and any other information you provide to Openprise, and keep all such information accurate, current and complete;
- immediately notify Openprise in the event you believe your account or access to the Service has been compromised;
evaluate and bear all risks associated with your use of any Service, including any reliance on the accuracy, completeness, or usefulness of the Content and the risks of unauthorized access. You have sole responsibility for adequate protection and backup of data and/or equipment used by you in connection with the Service. The interactivity and interface features of the Service are intended for use by persons who have authenticated their identities and lawfully received passwords to the Service from Openprise or its Affiliates (“Registered Users”). By using the Service in any manner, you represent that you are a Registered User.
3. YOUR USE OF THE SERVICE AND CONTENT
You agree you will not use the Service, Content, or any portion thereof, to:
- transmit, spam, or upload, post or otherwise transmit Content that is inaccurate, harmful, obscene, tortious, abusive, defamatory, racist or is otherwise offensive to others;
- pretend to be Openprise, any of its Affiliates, or someone else, or otherwise misrepresent your identity or affiliation;
- forge headers or otherwise manipulate identifiers (including URLs) in order to disguise the origin of any Content transmitted through the Service;
- disrupt the normal flow of dialogue or otherwise act in a manner that negatively affects other users’ ability to use the Service;
- engage in activities that would violate any fiduciary relationship, any applicable local, state, national, or international law, or any governmental regulations;
- interfere with, disrupt, or create an undue burden on servers or networks connected to the Service or violate the regulations, policies, or procedures of such networks;
- attempt to gain unauthorized access to the Service or other computer systems or networks connected to or used together with the Service;
- introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Service;
- provide, procure or permit third party access to the Service unless expressly so authorized by Openprise. You agree not to use the Service or Content in any way which:
- violates or infringes anyone’s third party rights, including intellectual property and privacy rights;
- transmits software viruses or any other computer code, files, or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
- is injurious to the interests of Openprise, any of its Affiliates, or other users of the Service.
You expressly agree that Openprise and its Affiliates have no responsibility or control over the Content that you, or any other user, purchases, uploads, posts or otherwise transmits via the Service (including, without limitation, any Content submitted to any on-line collaboration features, such as the Open Data Catalog, or your public services, such as an API – Application Programming Interface) or modifications you may make to the Content (collectively, “User Content”) and you acknowledge that Openprise and its Affiliates do not review the User Content before you, or any other user, uploads, modifies, posts or otherwise transmits such User Content. Openprise and its Affiliates make no representation that your use of the Service will comply with applicable laws or that they were designed to comply with applicable laws. Additionally, 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 Service. Openprise and its Affiliates do not endorse any opinions expressed in or through any such Content. You agree that you must evaluate and bear all risks associated with the use of any Content, including any reliance on the accuracy, completeness, or usefulness of the Content. Openprise possesses the immediate right, but not the obligation, to review, edit, or remove any Content from the Service at any time for a violation of this agreement and/or terminate your ability to access the Service without notice, at its sole discretion.
You hereby grant, and you represent and warrant that you have the right to grant, to Openprise an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use any User Content that you publish in the Open Data Catalog, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Service. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content. In addition, if you provide Openprise any feedback or suggestions regarding the Site or Services (“Feedback”), you hereby assign to Openprise all rights in the Feedback and agree that Openprise shall have the right to use such Feedback and related information in any manner it deems appropriate. Openprise will treat any Feedback you provide to Openprise as non-confidential and non-proprietary. You agree that you will not submit to Openprise any information or ideas that you consider to be confidential or proprietary.
4. YOUR PAYMENT OBLIGATIONS
Payment terms – You may order the Service by following the directions on the Service. If you order the Service, you agree to pay the then-current applicable Service fee listed on the Site. Openprise will automatically bill your payment method submitted in ordering the Service on the date the Service is activated, and each month thereafter, until you cancel your Service. All payments are non-refundable. Further, if you choose to purchase Partner Services through the Service, you will be required to pay the Partner’s then-current applicable fees for such Partner Services. You represent and warrant to Openprise that any information you submit with respect to the subscription to the Service or payment of Partner Services is true and that you are authorized to use the payment instrument you provide. You will promptly update your account information with any changes (e.g., a change in your billing address or credit card expiration date) that may occur. You here by authorize Openprise to bill your payment method as described above.
Automatic renewal -If the “Automatic renewal” box is selected in the Subscription Order, the Subscription Order will renew for additional terms of twelve months each unless you notify Openprise prior to thirty (30) days from the end of the current term that you wish to terminate the subscription, in which case it will expire at the end of the current term. The “term” is the initial term together with any renewal term(s). The Subscription Order will remain in effect until it expires as described above or is earlier terminated per this Agreement.
Fee update – Openprise will maintain the current fee schedule on www.openprisetech.com. Fee changes will take effect during the next billing cycle with a start date no earlier than 30 days from the time of publication. Customers with current paid subscriptions will receive email notification of any fee change no later than 7 days from the time of publication. Email will be sent to the billing contact email address on record. Customer is obligated to keep the billing contact information up-to-date to avoid any delay in receiving fee change notifications.
Timely payment – You agree 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 Service 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. Openprise reserves the right to refuse new Service orders or subscriptions for customers with outstanding unpaid invoices. 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.
Taxes – Customer will be responsible for, and will indemnify and hold Openprise harmless from, payment and/or reimbursement of any and all federal, state, dominion, provincial, or local sales, use, personal property, withholding, excise or other taxes (except for taxes based on Openprise’s net income), fees, duties, and other governmental charges, and any related penalties and interest, arising out of this Agreement or the transactions contemplated by this Agreement, or any payments due to Openprise under this Agreement or the delivery of the Service to, license of the Service to, or provision of any products or performance of any other services to Customer. Openprise may invoice Customer in advance or retroactively for all such taxes, fees, duties, and charges, as applicable. Customer will pay or reimburse all such amounts to Openprise free and clear of, and without reduction for, any withholding taxes, fees, duties and charges, and Customer shall gross up payments actually made such that Openprise shall receive sums due hereunder in full and fee of any deduction for any such withholding taxes, fees, duties and charges. Customer will provide Openprise with official receipts issued by the appropriate taxing authority, or such other documentary evidence that Openprise may reasonably request, to establish that such taxes have been paid.
5. OPENPRISE OBLIGATIONS
Customer support – Openprise provides different levels of technical support to customers subject to payment for the applicable subscription type as follow:
- Openprise provides support to customers with a current paid subscription via phone, email, and other on-line means. Technical support is available in accordance with our Service Level Agreement available here: https://www.openprisetech.com/sla/
- Openprise reserves the right to withhold support for customers with unpaid invoices.
- Openprise makes commercially reasonable efforts to provide technical support to Customers during free trials via email only during Openprise’s regular business hours. Openprise is under no obligation to respond to such support requests.
Service update – Openprise may release changes and enhancements to the Service with or without prior notification. Openprise is under no obligation to provide customer requested changes and enhancements to the Service. Service updates may result in changes to the Service in both function and appearance. Openprise will make commercially reasonable efforts to provide documentation on all changes to the Service. It is the responsibility of the customer to ensure all users are trained on the Service updates.
6. LINKS TO THIRD PARTY SITES
7. PARTNER CONTENT AND SERVICES
Openprise approved third parties (each, a “Partner”) may make available, for example, through the Data Marketplace or otherwise, third-party services and Content (“Partner Services”) for an additional fee. You may have the option to acquire Partner Services directly from the Partner or through Openprise. The availability of these two acquisition options will vary by Partner Service.
7.1 DIRECT ACQUISITION OF PARTNER SERVICES
In order to access certain features of the Service, including the acquisition of Partner Services directly from a Partner, you may be required to link your Openprise account to a third-party account maintained by you with a Partner, such as your Dun & Bradstreet account (“Partner Account”), by allowing Openprise to access your Partner Account, as is permitted under the applicable terms and conditions that govern your use of each Partner Account (each, a “Partner Agreement”). You represent that you are entitled to grant Openprise access to your Partner Account (including, but not limited to, for the purposes described here) without breach by you of any of the terms and conditions that govern your use of the applicable Partner Account and without obligating Openprise to pay any fees or making Openprise subject to any usage limitations imposed by such third-party service providers. By granting Openprise access to any Partner Accounts, you understand that Openprise may access and store (if applicable) any Content purchased by you or made available through the Partner Site (“Partner Content”) so that such Partner Content is available on and through the Service via your Openprise account. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE PARTNERS ASSOCIATED WITH YOUR PARTNER ACCOUNTS IS GOVERNED SOLELY BY YOUR PARTNER AGREEMENT(S) WITH SUCH PARTNERS, AND OPENPRISE DISCLAIMS ANY LIABILITY FOR ANY PERSONAL DATA THAT MAY BE PROVIDED TO OPENPRISE BY SUCH PARTNERS IN VIOLATION OF THE PRIVACY SETTINGS THAT YOU HAVE SET IN SUCH PARTNER ACCOUNTS. Openprise makes no effort to review any Partner Content for any purpose, including but not limited to, for accuracy, legality or noninfringement, and Openprise is not responsible for any Partner Content.
Any direct acquisition by you of any Partner Services, and any exchange of Content between you and any Partner is solely between you and the applicable Partner. Direct acquisition of Partner Services requires you to sign the appropriate license agreement with and pay the applicable fee directly to the Partner in accordance with your Partner Agreement with the applicable Partner. Openprise does not warrant or support Partner, whether or not they are designated by Openprise as “certified” or otherwise, unless expressly provided otherwise in an Order Form. To use directly acquired Partner Services, you are required to obtain access to such Partner Service from their providers, then grant Openprise access to your account(s) on such Partner Service. We cannot guarantee the continued availability of any such Partner Services.
7.2 USING THE SERVICE TO ACQUIRE PARTNER SERVICES
Any acquisition of such Partner Services through Openprise requires inclusion of such Partner Services as discrete line items on the Openprise Order Form.
8. PROPRIETARY RIGHTS AND CONFIDENTIAL INFORMATION
Except with respect to Partner Content, which is owned or licensed by the applicable Partner, or User Content, which is owned or licensed by the applicable User, the Service, including without limitation all Content and all intellectual property rights in and to the same, is owned by Openprise, its Affiliates, or our suppliers. You must not remove or modify any copyright or trademark notice, or other notice of ownership present on the Service. Except as otherwise stated in this Agreement, you acknowledge and agree that you have no right, title or interest in the Service. The provision of the Service does not transfer to you or any third party any rights, title or interest in or to such intellectual property rights. Openprise and its suppliers reserve all rights not granted in this Agreement.
The Service contains Openprise’s proprietary information that is protected to the maximum extent by applicable intellectual property and other laws. Except for the licenses expressly granted to you in this Agreement, Openprise reserves all right, title and interest to the Service, including without limitation 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.
“Openprise Trademarks” means all names, marks, brands, logos, designs, trade dress, slogans, and other designations Openprise or its Affiliates use in connection with its products and services. You may not remove or alter any Openprise Trademarks, or co-brand your own products or material with Openprise Trademarks, without Openprise’s prior written consent. You hereby acknowledge Openprise’s or its Affiliates’ rights in Openprise Trademarks and agree that any use of Openprise Trademarks by you shall inure to Openprise’s or its Affiliates’, as applicable, sole benefit.
“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 without limitation software, source code and specifications, trade secrets, development plans, technical information, business forecasts and strategies. Without limiting the foregoing, the Service, its 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 any 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 by the parties, the separate non-disclosure agreement shall control.
9. NOTICE PROCEDURE RELATING TO COPYRIGHT INFRINGEMENT
Openprise respects the intellectual property rights of others and expects all Service users and Openprise Partners to respect the intellectual property rights of Openprise and third parties. In connection with our Service, we have adopted and implemented a policy respecting copyright law that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our online Service who are repeat infringers of intellectual property rights, including copyrights. If you believe that one of our users is, through the use of our Service, unlawfully infringing the copyright(s) in a work, and wish to have the allegedly infringing material removed, the following information in the form of a written notification (pursuant to 17 U.S.C. § 512(c)) must be provided to our designated Copyright Agent:
- your physical or electronic signature;
- identification of the copyrighted work(s) that you claim to have been infringed;
- identification of the material on our services that you claim is infringing and that you request us to remove;
- sufficient information to permit us to locate such material;
- your address, telephone number, and e-mail address;
- a statement that you have a good faith belief that use of the objectionable material is not authorized by the copyright owner, its agent, or under the law; and
- a statement that the information in the notification is accurate, and under penalty of perjury, that you are either the owner of the copyright that has allegedly been infringed or that you are authorized to act on behalf of the copyright owner.
Please note that, pursuant to 17 U.S.C. § 512(f), any misrepresentation of material fact in a written notification automatically subjects the complaining party to liability for any damages, costs and attorney’s fees incurred by us in connection with the written notification and allegation of copyright infringement.
The designated Copyright Agent for Openprise is:
Openprise Designated Copyright Agent
303 Twin Dolphin Drive, Suite 600, Redwood City, CA 94065 USA
or send an email to email@example.com.
10. PRIVACY, SECURITY, CUSTOMER DATA, CONTINUITY & SUPPORT
Compliance with Privacy Laws. “Privacy Laws” means all laws and regulations governing processing of personal data that apply to Openprise in the relevant jurisdiction(s) under this Agreement. “Customer Data” means the data and information you upload to and/or input into the Service. Openprise will at all times comply with all Privacy Laws, and will only use Customer 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 Data solely to provide the Service to Customer, and authorizes Openprise and its Affiliates to utilize subprocessors and contractors solely to provide the Service to Customer in accordance with this Agreement (Openprise is fully responsible for such Affiliates’, subprocessors’ and contractors’ compliance with this Agreement); and
- Customer hereby warrants that, to the extent required by Privacy Laws applicable to Openprise’s provision of the Service to Customer, Customer has obtained from its personnel, customers and all legally-required third parties all rights and permissions legally required in order to grant the authorizations in Section 10(a) and to use the Service in the manner contemplated by this Agreement.
Also, notwithstanding anything to the contrary in this Agreement, if (i) complying with any Privacy Laws would materially change Openprise’s costs or risks in providing the Service (including, without limitation, by requiring that any Openprise data centers be located outside the U.S., or requiring Openprise to operate in violation of any U.S. laws), and (ii) after the Parties’ respective legal counsel meet to discuss the problem, Openprise provides written notice that it does not wish to incur such costs or risks, then each Party will have the right to terminate this Agreement (including all Order Forms and SOW) in writing within thirty (30) days after Openprise provides such written notice – in which case the termination will be effective thirty (30) days thereafter. In the event of such a termination, Customer’s sole right and Openprise’s sole obligation (except to the extent otherwise expressly stated in this Agreement) will be for Openprise to promptly refund to Customer, on a pro rata basis, any Fees paid under all Order Forms and SOW then in effect that are unused as of the termination effective date.
Security of the Service. Throughout the term of this Agreement, Openprise will maintain a data security program for the Service that will: (a) include reasonable administrative, physical, technical, organizational and other security measures to protect against unauthorized access to, or destruction, loss, unavailability or alteration of, any Customer Data processed or stored by the Service; (b) include reasonable and appropriate controls pursuant to Openprise’s Service Organization Control 2 (“SOC2”) audit. Openprise will be responsible for unauthorized access and damage to, and for unauthorized deletion, destruction and loss of, Customer Data solely to the extent arising from Openprise’s breach of its obligations under this Agreement. In cases where Customer requires Openprise to host data or file storage services such as but not limited to SFTP, AWS RDS or AWS RedShift, Openprise includes reasonable administrative and technical security measures to protect against unauthorized access to the service. Customer is solely responsible for securing its private key used to access these services. Customer is also responsible for managing the data within the hosted data or file storage services.
Export and Deletion of Customer Data. The Service allows Customer to export and back-up Customer Data at its discretion, and Openprise encourages Customer to do so regularly. Any export or transfer of Customer Data must occur no later than ninety (90) days after expiration or termination of this Agreement, and will require Customer to first pay all amounts owed Openprise and to sign a separate written agreement to (a) help ensure the security and integrity of such data is maintained, and (b) give Openprise reasonable protection against liability relating to extraction, transfer and potential misuse of such data. Openprise will assist with one extraction of Customer Data free of charge; Customer will be charged for any other data extraction at Openprise’s prevailing Professional Services rates. Regardless of the basis for expiration or termination of this Agreement, Openprise will not be obligated to retain any Customer Data for longer than ninety (90) days after any such expiration or termination, unless otherwise agreed in advance by the Parties in writing.
Business Continuity & Disaster Recovery. Openprise will implement and maintain throughout the term of this Agreement reasonable business continuity and disaster recovery plans to help ensure availability of the Customer Data following any significant interruption or failure of critical business processes or systems affecting the Service. Openprise will provide copies of such plans to Customer annually upon request.
Support & Service Level Agreement. Openprise will provide technical support for the Service 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 Order Form and this Agreement. Openprise support is can be reached at firstname.lastname@example.org and (888) 810-7774.
This Agreement take effect on the date you first access or use the Service and will continue until your account expires, ceases, or is terminated. Openprise reserves the right at any time in its sole discretion to terminate the Agreement, with or without notice. Upon termination of the Agreement for any reason, you will cease to have access to the Service and Content and all of your user’s rights herein will cease. You understand that any termination of your account involves deletion of your User Content associated therewith from our live databases. Openprise will not have any liability whatsoever to you for any termination of this Agreement, including for termination of your account or deletion of your User Content. 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 without limitation those of Sections 2, 3, 4, 7, 8, 9, and 11 through 16, inclusive.
Openprise hereby agrees to defend You against any claim, demand, suit, or proceeding (“Claim”) made or brought against You by a third party alleging that the use of the Service as permitted hereunder infringes or misappropriates the intellectual property rights of a third party, and shall indemnify You for any damages finally awarded against, and for reasonable attorney’s fees incurred by, You in connection with any such Claim; provided, that You (a) promptly give Openprise written notice of the Claim; (b) give Openprise sole control of the defense and settlement of the Claim (provided that Openprise may not settle any Claim that adversely affects You without Your prior written consent); and (c) provide 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 Service in combination with any other device, product, service, process, equipment, infrastructure or material not furnished or specified by Openprise, (b) any use of the Service that is not its intended use; or (c) any modification of any Service by anybody other than Openprise. In the event of any Claim under this paragraph, Openprise may, at its sole option and expense (i) procure for You the right to continue to use the Service, (ii) replace or modify the Service to make the use non-infringing; or (iii) terminate this Agreement and refund to You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination.
You hereby agree to indemnify and hold Openprise and its Affiliates harmless from any losses, expenses, costs or damages (including our 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; incurred directly or indirectly as a result of; or in any manner related to any claim, demand, or action based upon, your User Content, your use of or connection to the Service or API or any Partner Services, your violation of the Agreement, your violation of any law or regulation, or your violation of any rights of another (together, your “Use”) or Use of the Service and its Content by a third party where you have provided, permitted or procured such third party access.
13. OTHER USERS
Each Service user is solely responsible for any and all of its User Content. Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Service users and their content are solely between you and such user. You agree that Openprise will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any Service user, we are under no obligation to become involved.
Release. You hereby release and forever discharge us (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or relates directly or indirectly to, any interactions with, or act or omission of, other Service users or any third party sites linked to on the Service or any Partner Services. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
14. DISCLAIMER OF WARRANTIES
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE, INCLUDING ALL APIS, SERVICES, AND CONTENT, INCLUDING ANY PARTNER SERVICES, IS PROVIDED ON AN “AS IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. 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 SERVICE OR ANY PARTNER SERVICES (INCLUDING ANY PARTNER CONTENT) ACCESSED THROUGH OR PROVIDED THEREON.
OPENPRISE AND ITS AFFILIATES MAKE NO WARRANTY OR REPRESENTATION THAT: (a) THE SERVICE, INCLUDING ANY OPENPRISE SERVICES, PARTNER SERVICES, OR OPENPRISE-POWERED THIRD PARTY SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (b) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE, PARTNER SERVICES, OR OPENPRISE-POWERED SERVICES WILL BE ACCURATE OR RELIABLE; (c) THE QUALITY OF ANY PRODUCTS, SERVICES, CONTENT (INCLUDING PARTNER CONTENT), INFORMATION, OR OTHER MATERIAL OBTAINED FROM THE SERVICE, OPENPRISE SERVICES, PARTNERS, OR OPENPRISE-POWERED THIRD PARTY SERVICES WILL MEET YOUR EXPECTATIONS OR REQUIREMENTS; OR (d) ANY ERRORS IN THE SERVICE WILL BE CORRECTED.
YOU ASSUME ALL RISK FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM OBTAINING ANY CONTENT (INCLUDING PARTNER CONTENT) FROM THE SERVICE, OPENPRISE SERVICES, PARTNER SERVICES, OR OPENPRISE-POWERED THIRD PARTY SERVICES, INCLUDING ANY DAMAGES RESULTING FROM COMPUTER VIRUSES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
15. LIMITATION OF LIABILITY
TO THE FULL EXTENT PERMITTED BY LAW, OPENPRISE AND ITS AFFILIATES ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF BUSINESS, REVENUE, PROFITS, GOODWILL, USE, DATA, ELECTRONICALLY TRANSMITTED ORDERS, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF OR IN CONNECTION WITH THE SERVICE OR ANY OTHER OPENPRISE 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, OUR (AND OUR SUPPLIERS’) LIABILITY TO YOU 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 YOU’VE PAID OPENPRISE IN THE PRIOR 12 MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. GENERAL TERMS
Publicity – Customer agrees that Openprise may during the term of this agreement issue press releases and make orally reference to the fact that Customer is a customer of Openprise. Openprise agrees that Customer may also (during the term of this Agreement) make reference, orally or in writing, that Openprise is a service provider of Customer.
Beta service – We may offer certain Services as closed or open beta services (“Beta Service” or “Beta Services”) for the purpose of testing and evaluation. You agree that we have the sole authority and discretion to determine the period of time for testing and evaluation of Beta Services. We will be the sole judge of the success of such testing and the decision, if any, to offer the Beta Services as commercial services. You will be under no obligation to acquire a subscription to use any paid Service as a result of your subscription to any Beta Service. We reserve the right to fully or partially discontinue, at any time and from time to time, temporarily or permanently, any of the Beta Services with or without notice to you. You agree that Openprise will not be liable to you or to any third party for any harm related to, arising out of, or caused by the modification, suspension or discontinuance of any of the Beta Services for any reason.
International Sale of Goods; Export and Import Control Laws and Regulations. You and Openprise hereby agree to opt out from and expressly exclude any applicability of the Uniform Information Transactions Act (UCITA). Services, Content, and product derived or obtained from the Service may be subject to the U.S. export laws and the export or import laws of other countries. You agree to comply strictly with all such laws and, in particular, shall: (a) obtain any export, reexport, or import authorizations required by U.S. or your local laws; (b) not use Services, Content, or direct product from the Service to design, develop or produce missile, chemical/biological, or nuclear weaponry; and (c) not provide Services, Content, or direct product from the Service to prohibited countries and entities identified in the U.S. export regulations.
Equitable Relief. You agree that any breach of the Agreement will result in irreparable harm to Openprise or its Affiliates for which damages would be an inadequate remedy and, therefore, in addition to its rights and remedies otherwise available at law, Openprise or its Affiliates will be entitled to equitable relief, including both a preliminary and permanent injunction, if such a breach occurs. You waive any requirement for the posting of a bond or other security if Openprise or its Affiliates seek such an injunction.
Relationship of the Parties. Nothing in this Agreement shall be construed as creating a partnership, contract of employment, agency, joint venture or franchise relationship between Openprise or any of its Affiliates with you.
Waiver. Any express waiver or failure to exercise promptly any right under the Agreement will not create a continuing waiver or any expectation of non-enforcement. If any provision of the Agreement is held invalid by any law or regulation of any government, or by any court or arbitrator, the parties agree that such provision will be replaced with a new provision that accomplishes the original business purpose, and the other provisions of the Agreement will remain in full force and effect.
Dispute Resolution. Except for disputes brought in small claims court, all disputes between you and Openprise arising out of, relating to or in connection with the Services shall be exclusively settled through binding arbitration in Santa Clara County, California pursuant to the then-current rules of the American Arbitration Association (“AAA”) for commercial arbitration. There is no judge or jury in arbitration. Arbitration procedures are simpler and more limited than rules applicable in court and review by a court is limited. YOU AND OPENPRISE AGREE THAT ANY SUCH ARBITRATION SHALL BE CONDUCTED ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. Notwithstanding any provision in these terms to the contrary, if the class-action waiver in the prior sentence is deemed invalid or unenforceable, however, neither you nor we are entitled to arbitration. This arbitration agreement is subject to the Federal Arbitration Act. The arbitrator’s award may be entered in any court of competent jurisdiction. Notwithstanding any provision in these terms to the contrary, we agree that if Openprise makes any future change to this dispute resolution provision, it will not apply to any individual claim(s) that you had already provided notice of to Openprise. Information on AAA and how to start arbitration can be found at www.adr.org or by calling 800-778-7879. If the arbitration in this section provision is found unenforceable or to not apply for a given dispute, then the proceeding must be brought exclusively in a court of competent jurisdiction in Santa Clara County, California. This Agreement is governed by the laws of the State of California without regard to conflict of law provisions.
No Third Party Beneficiary. You acknowledge and agree that, except as otherwise expressly provided in the Agreement, there shall be no third party beneficiary to this agreement.
Entire Agreement. The Agreement constitutes the entire agreement between you and Openprise relating to the Services, and cancels and supersedes any prior versions of the Agreement. No modification to the Agreement will be binding, unless in writing and signed by an authorized Openprise representative. You may not assign, sublicense, delegate or otherwise transfer the Agreement or any obligations or rights hereunder without Openprise’s prior written consent. Openprise may assign this Agreement or any rights or obligations herein. Any assignment in violation of the foregoing is null and void. The terms of this Agreement shall be binding upon assignees. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation.
If you have any questions about this Agreement, please contact us at email@example.com
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