Commercial License Terms and Conditions

These Commercial License Terms, as amended from time to time (the “Terms”), are entered into by and between Opstrace, Inc., a Delaware corporation, located at 2261 Market Street #4240, San Francisco CA, 94114 (“Opstrace”), and the customer identified during Onboarding (“Customer”). “Onboarding” means the process by which Customer procures from Opstrace a subscription to use the Software through a self-service sign-up process made available on Opstrace’s website. These Terms and any terms agreed-to during Onboarding are collectively referred to herein as the “Agreement”. By accessing or using the Software (as defined below) or clicking a button or checking a box marked “Submit”, “I Agree”, “I Accept”, or something similar, or by otherwise affirmatively manifesting assent to this Agreement, Customer signifies that Customer has read, understood, and agrees to be bound by this Agreement as of Customer’s completion of Onboarding (such date, the “Effective Date”).

1. License and Restrictions.
   1. License Grant. With regard to the software and products identified during Onboarding (“Software”), and subject to and conditioned on Customer’s compliance with all other terms and conditions of this Agreement, Opstrace hereby grants to Customer a non-exclusive, non-sublicensable, and non-transferable (except as set forth in Section 10.5) license, during the Subscription Period, to: (a) use the Software and the documentation Opstrace makes available to Customer for use in connection with the Software (the “Documentation”) solely for Customer’s internal business purposes; and (b) make a reasonable number of copies of the Software and Documentation as necessary to support Customer’s internal use thereof. Customer’s use of the Software will be measured by and subject to the usage limitations set forth during Onboarding (the “Usage Limitations”). Opstrace reserves all rights not expressly granted to Customer in this Agreement.
   2. License Restrictions. Except as this Agreement expressly permits, Customer shall not, and shall not permit any third party to: (a) copy the Software, in whole or in part; (b) modify, correct, adapt, translate, enhance, or otherwise prepare derivative works or improvements of any Software; (c) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Software to any third party; (d) bypass or breach any security device or protection used for or contained in the Software or Documentation or attempt to decompile, disassemble, or otherwise reverse engineer any Software; (e) remove, delete, efface, alter, obscure, translate, combine, supplement, or otherwise change any trademarks, terms of the Documentation, warranties, disclaimers, or Intellectual Property Rights (as defined below), proprietary rights or other symbols, notices, marks, or serial numbers on or relating to any copy of the Software or Documentation; (f) use the Software or Documentation in any manner or for any purpose that infringes, misappropriates, or otherwise violates any patent, copyright, trademark, trade secret, database protection, or other intellectual property or similar proprietary right (“Intellectual Property Right”) or other right of any third party, or that violates any applicable statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction (“Law”); (g) use the Software or Documentation for purposes of developing, using, or providing a product or service that competes with, or provides similar functionality to, the Software; (h) use the Software or Documentation in or in connection with the design, construction, maintenance, operation, or use of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Software could lead to personal injury or severe physical or property damage; or (i) use the Software or Documentation in any manner or for any purpose or application not expressly permitted by this Agreement or contemplated by the Documentation.
   3. Open Source and Other Third-Party Components. The Software may contain or be provided with certain third-party software modules and components that are subject to separate or additional terms and conditions, including “open source” software modules and components (“Third-Party Components”) In addition, the Software may contain or be provided with certain other software modules and components offered by Opstrace under the terms and conditions of “open source” software licenses (“Opstrace Open Source Components”). Opstrace will provide Customer all notices and materials required for Opstrace’s compliance with the terms and conditions applicable to the Third-Party Components and Opstrace Open Source Components in the Documentation, within the Software, or through another method chosen by Opstrace in its reasonable discretion. With respect to any Third-Party Components and Opstrace Open Source Components made available under the terms and conditions of “open source” software licenses (“Open Source Components”), all use of such Open Source Components by Customer is governed by, and subject to, the terms and conditions of the open source software license applicable to the Open Source Component and not this Agreement. With respect to any Third-Party Components that are not Open Source Components, to the extent users of such Third-Party Components are required to agree to any separate or additional terms and conditions in order to use such Third-Party Components, Opstrace will provide such terms and conditions to Customer and Customer’s use of such Third-Party Components is subject to such terms and conditions. Otherwise, or in addition, Opstrace will pass through to Customer the benefit of any warranties, indemnities, and other protections provided for in Opstrace’s agreements with the licensors of such Third-Party Components.
   4. Usage Data. As described in more detail in the Documentation and Opstrace Privacy Policy, incorporated herein by reference and available at https://go.opstrace.com/privacy, as it may be updated by Opstrace from time to time, Opstrace may collect, maintain, process, and use diagnostic, technical, usage and related information, including information about Customer’s computers, systems, and software, that Opstrace may gather periodically (“Usage Data”). The Software may contain technological measures designed to prevent unauthorized or illegal use of the Software. Customer acknowledges and agrees that Opstrace may use these and other lawful measures to verify Customer’s compliance with the terms of this Agreement and enforce Opstrace’s rights, including all Intellectual Property Rights, in and to the Software. The terms of the data processing addendum at https://go.opstrace.com/dpa (“DPA”) are hereby incorporated by reference and shall apply to the extent Opstrace processes Personal Data, as defined in the DPA, on behalf of Customer.
   5. Delivery. Opstrace will make available to Customer the Software electronically in a form and via a method determined by Opstrace that is reasonably acceptable to Customer (e.g., preinstalled on a virtual machine or container, in binary form, or another method). Customer acknowledges that the term “Software” as used in this Agreement does not include Third-Party Components and Opstrace Open Source Components, including without limitation any of the foregoing that may be delivered by Opstrace in combination with the Software (e.g., preinstalled on the same virtual machine or container or on the same media).
   6. Customer Responsibilities. Customer is responsible and liable for all uses of the Software and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer will take reasonable efforts to make all Authorized Users aware of this Agreement’s provisions as applicable to such Authorized User’s use of the Software and Documentation and will cause Authorized Users to comply with such provisions.
2. Services.
   1. Maintenance; Service Levels. During the Subscription Period, Opstrace will provide Customer with updates, upgrades, releases, or other adaptations or modifications of the Software, including any updated Documentation, error corrections, enhancements, improvements, or other changes to the user interface, functionality, compatibility, capabilities, performance, efficiency, or quality of the Software (“Maintenance Releases”) that Opstrace may, in its sole discretion, make generally available to its customers at no additional charge, but not including any New Product (defined below). All Maintenance Releases provided by Opstrace to Customer are deemed Software. Opstrace may, but is not obliged to, provide Customer with any new version of the Software that Opstrace may from time to time introduce and market generally as a distinct licensed product or under a Product Pricing and Support Tier different from that identified during Onboarding (each a “New Product”). Opstrace will support the Software in accordance with the service levels available at https://opstrace.com/service-levels that are applicable to the Pricing and Support Tier identified during Onboarding (the “Service Levels”).
   2. Commercial; Free. This Section 2.2 applies if Customer orders Opstrace’s Commercial or Free products. Customer will install all Maintenance Releases as soon as practicable after receipt and in any event, Customer will not use any release of the Software that is older than the Software releases set forth at https://opstrace.com/supported-releases.
   3. Managed Commercial. This Section 2.3 applies if Customer orders Opstrace’s Managed Commercial product. During the Subscription Period, Opstrace may provide Customer with certain services and deliverables in accordance with the terms and conditions set forth during Onboarding, if any (“Services”). Opstrace will perform the Services in a professional and workmanlike manner. For any breach of the foregoing sentence, Customer’s exclusive remedy and Opstrace’s entire liability will be the re-performance of the applicable Services. Customer will cooperate reasonably and in good faith with Opstrace in its performance of Services by, without limitation: (a) allocating sufficient resources and timely performing any tasks reasonably necessary to enable Opstrace to perform its obligations hereunder; and (b) timely responding to Opstrace’s inquiries related to the Services and providing complete, accurate, and timely information, data and feedback as reasonably required by Opstrace. Any delays in the performance of Services caused by Customer may result in additional applicable fees for such Services. From time to time as may be required for Opstrace’s provision of the Services, Customer may make available to Opstrace certain equipment, application(s), or systems (collectively, the “Customer Equipment”). Opstrace shall access and use the Customer Equipment for the sole purpose of providing the Services for Customer. Customer represents and warrants that it is either the owner of the Customer Equipment or that it has authority to give Opstrace access to the Customer Equipment. Subject to the terms and conditions of this Agreement, Opstrace hereby grants Customer a worldwide, perpetual, non-exclusive, non-sublicensable, and non-transferable (except as set forth in Section 10.5) license to use, solely for Customer’s internal business purposes associated with the Services, any deliverables developed by Opstrace for Customer resulting from the Services (“Deliverables”).
3. Fees and Payment.
   1. Fees and Payment Terms. Customer shall pay Opstrace the fees identified during Onboarding (the “Fees”) in accordance with the terms of this Section 3. If Customer renews a subscription for an additional Renewal Period, unless otherwise mutually agreed in writing, Customer shall pay the then-current standard license fees that Opstrace charges for the Software during the applicable Renewal Period. Customer shall pay all amounts due and owing under this Agreement within thirty (30) days after the date of Opstrace’s invoice therefore. Customer shall make all payments hereunder in US dollars by ACH or online credit or debit card payment via the link provided in the applicable invoice to such account as Opstrace may specify in writing from time to time, or by another mutually agreed-upon payment method. Customer agrees to be bound by the Stripe, Inc. Services Agreement available at https://stripe.com/legal. All amounts payable to Opstrace under this Agreement shall be paid by Customer to Opstrace in full without any setoff, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by Law).
   2. Late Payment. If Customer fails to make any undisputed payment when due then, in addition to all other remedies that may be available to Opstrace: (a) Opstrace may charge interest on the undisputed past due amount at the rate of one and a half percent (1.5%) per month calculated daily and compounded monthly or, if lower, the highest rate permitted under Law; (b) Customer shall reimburse Opstrace for all reasonable costs incurred by Opstrace in collecting any late payment of amounts due or related interest, including attorneys’ fees, court costs, and collection agency fees; and (c) if such failure continues for ten (10) days following written notice thereof, Opstrace may: (i) withhold, suspend or revoke its grant of a license hereunder; and/or (ii) terminate this Agreement under Section 6.2(a).
   3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Customer is responsible for all sales, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Customer hereunder, other than any taxes imposed on Opstrace’s income.
4. Confidentiality.
   1. Confidential Information. In connection with this Agreement, each party (the “Disclosing Party”) may disclose or make available Confidential Information to the other party (the “Receiving Party”). “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, whether or not marked, designated or otherwise identified as “confidential.” Without limiting the foregoing all non-public aspects of the Software and the terms of this Agreement are the Confidential Information of Opstrace. Confidential Information does not include information that: (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of Representatives’ (as defined below) noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
   2. Protection of Confidential Information. As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall for the Term and two (2) years thereafter: (a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement; (b) except as may be permitted under the terms and conditions of Section 4.3, not disclose or permit access to Confidential Information other than to its employees, officers, directors, consultants, agents, independent contractors, and advisors (“Representatives”) who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 4; and (iii) are bound by written confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 4; (c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; (d) promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and take all reasonable steps to prevent further unauthorized use or disclosure; and (e) ensure its Representatives’ compliance with, and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 4. Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this Section 4 with respect to any Confidential Information that constitutes a trade secret under any Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
   3. Compelled Disclosures. If the Receiving Party or any of its Representatives is compelled by Law to disclose any Confidential Information, then, to the extent permitted by Law, the Receiving Party will: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 4.2; and (b) provide reasonable assistance to the Disclosing Party in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 4.3, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, will use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
5. Intellectual Property Rights
   1. Intellectual Property Ownership. Customer acknowledges and agrees that: (a) the Software, Deliverables and Documentation are licensed, not sold, to Customer by Opstrace and Customer does not have under or in connection with this Agreement any ownership interest in the Software, Deliverables or Documentation, or in any related Intellectual Property Rights; and (b) Opstrace and its licensor(s) are the sole and exclusive owners of all right, title and interest in and to the Software, Deliverables and Documentation, including all Intellectual Property Rights relating thereto, subject only to the rights of third parties in Open Source Components and Third-Party Components and the limited license granted to Customer under this Agreement.
   2. No Implied Rights. Except for the limited rights and licenses expressly granted under this Agreement, nothing in this Agreement grants, by implication, waiver, estoppel or otherwise, to Customer or any third party any Intellectual Property Rights or other right, title, or interest in or to any of the Software, Deliverables or Documentation.
6. Term and Termination
   1. Term. Unless earlier terminated as provided herein, this Agreement shall commence on the Effective Date and shall continue until the expiration of all subscriptions entered into hereunder (the “Term”). If automatic renewal is selected during Onboarding, the applicable subscription shall automatically renew for the period set forth during Onboarding (each a “Renewal Period”) with regard to such Software, unless either party provides the other party with written notice of non-renewal at least thirty(30) days prior to the end of the Subscription Period or then-current Renewal Period. If a pilot term is selected during Onboarding, the applicable subscription will not automatically renew and will terminate upon expiration of the applicable pilot term.
   2. Termination. This Agreement may be terminated at any time: (a) by either party, effective on written notice to the other party, if the other party materially breaches this Agreement and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; or (b) by either party, upon thirty (30) days’ written notice to the other party. If Opstrace terminates this Agreement pursuant to Section 6.2(a) or Customer terminates this Agreement pursuant to Section 6.2(b), Opstrace will not refund to Customer any Fees prepaid by Customer for time remaining during the Subscription Period. If Opstrace terminates this Agreement pursuant to Section 6.2(b) or Section 8.1(c)(iii) or Customer terminates this Agreement pursuant to Section 6.2(a), Opstrace will provide to Customer a refund of Fees prepaid by Customer for time remaining during the Subscription Period.
   3. Effect of Termination or Expiration. On the expiration or earlier termination of this Agreement: (a) all rights, licenses and authorizations granted to Customer hereunder will immediately terminate and (i) Customer must immediately cease all use of and other activities with respect to the affected Software and Documentation; and (ii) the Receiving Party will, within ten (10) days, or at the Disclosing Party’s written request destroy, all of the Disclosing Party’s Confidential Information in the Receiving Party’s possession, custody, or control, including all documents, files, and tangible materials (and any partial and complete copies) containing, reflecting, incorporating, or based on any of the foregoing, whether or not modified or merged into other materials; and (b) all remaining amounts payable by Customer to Opstrace of any kind are immediately payable and due no later than thirty (30) days after the effective date of the expiration or termination of this Agreement
   4. Surviving Terms. The provisions set forth in the following sections of the Terms, and any other right, obligation or provision under this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: this Section 6.4 and Sections 3, 4, 5, 7.3, and 8 through 10 (inclusive).
7. Warranty Limited.
   1. Limited Warranty. Subject to the limitations and conditions set forth in Section 7.2, Opstrace warrants to Customer that, during the Subscription Period, the Software will substantially conform in all material respects to the Documentation applicable to the particular Software or Maintenance Release, when installed, operated and used as recommended in the Documentation applicable to the particular Software or Maintenance Release and in accordance with this Agreement. In the event of any actual or alleged breach of the foregoing limited warranty, Customer’s sole and exclusive remedy, and Opstrace’s sole and exclusive liability, will be for Customer to submit a support request and for Opstrace to respond to and resolve such request in accordance with the Service Levels. The limited warranty set forth in this Section 7.1 will apply only if Customer, as of the date of notification, is in compliance with all terms and conditions of this Agreement (including the payment of all Fees then due and owing).
   2. Exceptions. Notwithstanding any provisions to the contrary in this Agreement, the limited warranty set forth in Section 7.1 does not apply to problems arising out of or relating to: (a) Software that is modified or damaged by Customer or its Representatives; (b) any operation or use of, or other activity relating to, the Software other than as specified in the Documentation applicable to the particular Software or Maintenance Release, including any incorporation in the Software of, or combination, operation or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation applicable to the particular Software or Maintenance Release; (c) Customer’s failure to promptly install all Maintenance Releases that Opstrace has previously made available to Customer (provided that Opstrace will continue to provide support with respect to the Software releases set forth at https://go.opstrace.com/supported-releases); (d) the operation of, or access to, Customer’s or a third party’s system or network; (e) any beta software, software that Opstrace makes available for testing or demonstration purposes, temporary software modules, or software for which Opstrace does not receive a license fee; (g) Customer’s breach of any provision of this Agreement; or (h) a Force Majeure Event.
   3. DISCLAIMER OF WARRANTIES. EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7.1, ALL SOFTWARE, DELIVERABLES, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED BY OPSTRACE ARE PROVIDED “AS IS”. OPSTRACE SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, OPSTRACE MAKES NO WARRANTY OF ANY KIND THAT THE SOFTWARE, DELIVERABLES OR DOCUMENTATION, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, OR BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEMS, OR OTHER SERVICES.
8. Indemnification
   1. Opstrace Indemnity.
      1. Indemnity Obligation. Opstrace shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, deficiencies, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees (“Losses”) incurred by Customer resulting from any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or other, whether at law, in equity, or otherwise (“Actions”) brought by a third party against Customer alleging that the Software or Documentation, or any use of the Software or Documentation in accordance with this Agreement, infringes or misappropriates such third party’s U.S. Intellectual Property Rights.
      2. Exceptions. This Section 8.1 does not apply to the extent that the alleged infringement arises from: (i) Third-Party Components or Open Source Components; (ii) the combination, operation, or use of the Software in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by Opstrace or specified for Customer’s use in the Documentation; (iii) modification of the Software other than: (A) by Opstrace in connection with this Agreement; or (B) with Opstrace’s express written authorization and in strict accordance with Opstrace’s written directions and specifications; (iv) use of any version of the Software other than the Software releases set forth at https://go.opstrace.com/supported-releases or failure to timely implement any Maintenance Release, modification, update or replacement of the Software made available to Customer by Opstrace; (v) use of the Software after Opstrace’s notice to Customer of such activity’s alleged or actual infringement, misappropriation or other violation of a third party’s rights and provision of a non-infringing alternative; (vi) negligence, abuse, misapplication, or misuse of the Software or Documentation by or on behalf of Customer, Customer’s Representatives, or a third party; (vii) use of the Software or Documentation by or on behalf of Customer that is outside the purpose, scope, or manner of use authorized by this Agreement; or (h) Actions or Losses for which Customer is obligated to indemnify Opstrace pursuant to Section 8.2.
      3. Mitigation. If the Software, or any part of the Software, is, or in Opstrace’s opinion is likely to be, claimed to infringe, misappropriate or otherwise violate any third party Intellectual Property Right, or if Customer’s use of the Software is enjoined or threatened to be enjoined, Opstrace may, at its option and sole cost and expense: (i) obtain the right for Customer to continue to use the Software materially as contemplated by this Agreement; (ii) modify or replace the Software, in whole or in part, to seek to make the Software non-infringing, while providing materially equivalent features and functionality (and such modified or replacement software constitutes Software under this Agreement); or (iii) terminate this Agreement, in its entirety or with respect to the affected part or feature of the Software, effective immediately on written notice to Customer, in which event Customer shall cease all use of the affected part or feature of the Software or all of the Software and Documentation, as applicable, immediately on receipt of Customer’s notice.
   2. Customer Indemnity. Customer shall indemnify, defend, and hold harmless Opstrace and its affiliates, and its and their respective directors, officers, employees, contractors, licensors, service providers, and suppliers and their respective successors and assigns (“Opstrace Indemnitees”) from and against any and all Losses resulting from any Action brought by a third party against Opstrace or any Opstrace Indemnitee relating to an allegation that any Intellectual Property Rights or other right of any third party, or any Law, is or will be infringed, misappropriated, or otherwise violated by any use or combination of the Software by or on behalf of Customer or any of its Representatives with any hardware, software, data, system, network, service, or other matter whatsoever that is neither provided by Opstrace nor authorized by Opstrace in this Agreement and the Documentation.
   3. Indemnification Procedure. The party seeking indemnification (the “Indemnified Party”) must provide the party from whom indemnification is sought (the “Indemnifying Party”): (a) prompt written notice of the claim for which indemnification is sought (provided that a failure to provide such notice will not relieve the Indemnifying Party of its obligations hereunder except to the extent material prejudice results from such failure); (b) sole control over the defense and settlement of the claim (provided that the Indemnifying Party may not enter into any settlement or dispose of any claim in a manner that requires the Indemnified Party to admit any liability or that places any material obligation on the Indemnified Party without the Indemnified Party’s prior written consent, not to be unreasonably withheld, conditioned, or delayed); and (c) all reasonable cooperation, at the Indemnifying Party’s request and expense, in the defense and settlement of the claim.
   4. Sole Remedy. THIS SECTION 8 SETS FORTH CUSTOMER’S SOLE REMEDIES AND OPSTRACE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SOFTWARE OR DOCUMENTATION OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
9. Limitations of Liability.
   1. EXCLUSION OF DAMAGES. IN NO EVENT WILL EITHER PARTY (OR, IN THE CASE OF OPSTRACE, ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS) BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY (A) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES OR PROFITS, (B) LOSS OF GOODWILL OR REPUTATION, (C) COST OF REPLACEMENT GOODS OR SERVICES, OR (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, IN EACH CASE REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
   2. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF EITHER PARTY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE AMOUNTS ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY. THE FOREGOING LIMITATION APPLIES EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
   3. EXCEPTIONS. THE LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 9.1 AND 9.2SHALL NOT APPLY WITH RESPECT TO: (A) EITHER PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS; (B) EITHER PARTY’S OBLIGATIONS UNDER SECTION 8 OR BREACH THEREOF (PROVIDED THAT OPSTRACE’S AGGREGATE LIABILITY IN CONNECTION WITH ITS OBLIGATIONS UNDER SECTION 8 WILL NOT EXCEED THREE TIMES (3X) THE AMOUNT ACTUALLY PAID BY CUSTOMER HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO THE LIABILITY); (C) EITHER PARTY’S GROSS NEGLIGENCE, FRAUD, OR WILLFUL MISCONDUCT; OR (D) CUSTOMER’S PAYMENT OBLIGATIONS.
10. Miscellaneous
    1. Relationship of the Parties. The relationship between the parties is that of independent contractors. Nothing contained in this Agreement will be construed as creating any agency, partnership, joint venture, or other form of joint Commercial, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
    2. Public Announcements. Neither party shall issue or release any announcement, statement, press release, or other similar publicity relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s name, logo, or other trademarks, in each case, without the prior written consent of the other party, which shall not be unreasonably delayed or withheld. Notwithstanding the foregoing, Opstrace may freely refer to Customer and its relationship with Opstrace in connection with publicizing and marketing Opstrace’s products and services, including the Software, without such consent, including without limitation by using Customer’s name, logo, and other trademarks to identify Customer as a current or former customer and using product testimonials and quotes provided by Customer, and Opstrace may do any of the foregoing on its website, in social media, in media communications, and otherwise in advertising Opstrace’s products and services and in marketing and promotional materials.
    3. Notices. Any and all notices permitted or required to be given hereunder shall be deemed duly given: (a) upon actual delivery, if delivery is by hand; (b) one (1) day after being sent by overnight courier, charges prepaid; or (c) one (1) day after being sent by email (return receipt requested). Notices to Customer shall be sent to the address provided during Onboarding, or at such other address for which Customer gives notice hereunder. Notices to Opstrace shall be sent to the address provided during Onboarding, or at such other address for which Opstrace gives notice hereunder with a copy via email to [email protected] (return receipt requested).
    4. Entire Agreement. This Agreement and any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
    5. Assignment. Customer shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Opstrace’s prior written consent. No assignment, delegation, or transfer will relieve Customer of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 10.5 is void. This Agreement is binding on and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
    6. U.S. Government End Users. The Software and Documentation were developed by private financing and constitute a “Commercial Item,” as that term is defined at 48 C.F.R. § 2.101. The Software and Documentation consist of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212. Consistent with 48 C.F.R. § 12.212 and 48 C.F.R. §§ 227.7202-1 through 227.7202-4, all U.S. Government End Users acquire only those rights in the Software and the Documentation that are specifically provided by this Agreement. Consistent with 48 C.F.R. § 12.211, all U.S. Government End Users acquire only technical data and the rights in that data customarily as specifically provided in this Agreement.
    7. Force Majeure. Except for payment obligations, in no event will either party be liable or responsible to the other party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement when and to the extent such failure or delay is caused by any circumstances beyond the affected party’s reasonable control (a “Force Majeure Event”), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the Effective Date, national or regional emergency, pandemic, epidemic, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of thirty (30) days or more. In the event of any failure or delay caused by a Force Majeure Event, the affected party will give prompt written notice to the other party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
    8. No Third-Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer on any other third party any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
    9. Amendment; Waiver; Severability. Opstrace may, in its sole discretion and from time to time, modify these Terms to reflect changes to applicable laws or to the Software. Customer’s continued use of the Software after any such change constitutes Customer’s acceptance of the new Terms. If Customer does not agree to any of these Terms or any future Terms, Customer may not use or continue to use the Software. Changes will become effective no sooner than seven (7) days after they are posted; provided that changes addressing new functions or changes made for legal reasons will be effective immediately. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power or privilege. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision.
    10. Governing Law; Submission to Jurisdiction. This Agreement and all matters relating hereto are governed by and construed in accordance with the internal laws of the State of California without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of California. Any Action arising out of or related to this Agreement or the licenses granted hereunder will be instituted exclusively in the federal courts of the United States or the courts of the State of California in each case located in San Francisco County, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such Action. Service of process, summons, notice or other document by mail to such party’s address set forth herein will be effective service of process for any suit, action, or other proceeding brought in any such court.
    11. Dispute Resolution. In the event of a dispute between the parties relating to this Agreement, duly authorized representatives of the parties will use commercially reasonable efforts designed to resolve the dispute. If the dispute is not resolved within fifteen (15) calendar days of its initiation, either party may seek to resolve the dispute in binding arbitration before JAMS, Inc. (“JAMS”) before a single arbitrator reasonably agreeable to both parties. If the parties cannot agree on a single arbitrator within ten (10) business days after the commencement of the arbitration, each party shall select a neutral arbitrator who is not employed by or a consultant to either party, and the two (2) selected arbitrators shall select a neutral third arbitrator. All arbitrators must have reasonable training and industry experience relevant to the particular dispute. The arbitration shall be held in accordance with JAMS’ Streamlined Arbitration Rules & Procedures in San Francisco County, California unless otherwise mutually agreed. The decision shall be binding on the parties and shall be final and nonappealable. Except with respect to Actions (a) concerning a party’s violation of the other party’s Intellectual Property Rights, (b) to enforce any arbitration award between the parties, or (c) for claims of equitable relief, the dispute resolution process set forth in this Section 10.11 sets forth each party’s sole and exclusive remedy for resolving disputes.
    12. Equitable Relief. Each party acknowledges and agrees that a breach or threatened breach by the other party of any of its obligations under Section 4 of this Agreement would cause such party irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, the non-breaching party will be entitled to equitable relief, including in a restraining order, an injunction, specific performance, and any other relief that may be available from any court of competent jurisdiction, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
    13. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement. A signed copy of this Agreement delivered by facsimile, email, or other means of electronic transmission (e.g., DocuSign or an equivalent technology product) is deemed to have the same legal effect as delivery of an original signed copy of this Agreement.