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”).
- License and Restrictions.
- 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.
- 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.
- 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.
- 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.
- 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).
- 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.
- Services.
- 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”).
- 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.
- 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”).
- Fees and Payment.
- 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).
- 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).
- 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.
- Confidentiality.
- 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.
- 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.
- 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.
- Intellectual Property Rights
- 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.
- 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.
- Term and Termination
- 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.
- 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.
- 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
- 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).
- Warranty Limited.
- 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).
- 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.
- 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.
- Indemnification
- Opstrace Indemnity.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- Limitations of Liability.
- 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.
- 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.
- 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.
- Miscellaneous
- 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.
- 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.
- 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).
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.