Openprise Toolbox License Agreement

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 expressly agrees that Openprise and its Affiliates have no responsibility or control over the Content that Customer 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.

3. NO TECHNICAL SUPPORT

Openprise is under no obligation to provide Customer with support for the Services, or to provide any updates or error corrections to the Services.

4. 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.

Customer hereby grants to Openprise and its representatives a non-exclusive, revocable, non-sublicensable, non-transferable license to use the Customer Content during the term of this Agreement solely to the extent reasonably necessary or useful to perform the Services and any other obligations hereunder. 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.

“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.

5. 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:

1. 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
2. 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 5(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.

6. TERM AND TERMINATION

In general. This Agreement shall commence upon Customer’ successful registration and shall remain in effect until Customer ceases using the Services or Openprise ceases to make the Services available to Customer.

Effect of termination. Upon any 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. 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. Customer has sole responsibility for adequate protection and backup of Customer Content data and/or equipment used in connection with the Services. Openprise does not back up Customer Content and encourages Customer to back up Customer Content regularly.

7. INDEMNITY

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, 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.

8. DISCLAIMER OF WARRANTIES

THE SERVICES ARE PROVIDED “AS-IS” EXCLUSIVE OF ANY AND ALL 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 (INCLUDING ANY CONTENT) ACCESSED THROUGH OR PROVIDED THEREON. The Services may contain bugs or errors. Any use of the Services is at Customer’s sole risk. Openprise may discontinue making the Services available to Customer at any time in Openprise’s sole discretion.

9. LIMITATION OF LIABILITY

TO THE FULL EXTENT PERMITTED BY APPLICABLE LAW, OPENPRISE AND ITS AFFILIATES WILL NOT BE 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, 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).

10. 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.