Openware Inc. OpenDAX Cloud Terms of Service
Effective Starting: 28 February 2021
These Openware Cloud Terms of Service (these “Terms”) describe your rights and responsibilities as a customer of our Cloud Products. These Terms are between you and Openware Inc. (“Openware”, “we” or “us”).“You” means the entity you represent in accepting these Terms or, if that does not apply, you individually. If you are accepting on behalf of your employer or another entity, you represent and warrant that: (i) you have full legal authority to bind your employer or such entity to these Terms; (ii) you have read and understand these Terms; and (iii) you agree to these Terms on behalf of the party that you represent.
These Terms are effective as of the date you use or access our Cloud Products (the “Effective Date”). These Terms do not have to be signed in order to be binding. You indicate your assent to these Terms by placing an Order.
1. The Terms
1.1. Cloud Products
1.2. Software Products Not Covered
These Terms do not apply to our downloadable software products use of which requires a separate license agreement with us.
2. Cloud Product Administration
Through the Cloud Products, you may be able to specify certain End Users as Administrators, who will have important rights and controls over your use of the Cloud Product and End User Accounts. You are responsible for whom you allow to become Administrators and any actions they take. You agree that our responsibilities do not extend to the internal management or administration of the Cloud Products for you.
You must require that all End Users keep their user IDs and passwords for the Cloud Products strictly confidential and do not share such information with any unauthorized person. User IDs are granted to individual, named persons and may not be shared. You are responsible for any and all actions taken using End User Accounts and passwords, and you agree to immediately notify us of any unauthorized use of which you become aware.
2.3. End User Consent
2.4. Age Requirement
The Cloud Products are not intended for, and should not be used by, anyone under the age of 18. You are responsible for ensuring that all End Users are at least 18 years old.
3. Cloud Product Subscription Terms
Subject to these Terms and during the applicable Subscription Term, you may access and use the Cloud Product for your own business purposes or personal use, as applicable, all in accordance with these Terms, the applicable Order and the Documentation. The rights granted to you in this section are non-exclusive, non-sublicensable and non-transferable.
3.2. Help Desk Service
During the Subscription Term, we will provide Support for the Cloud Products in accordance with the Openware Help Desk Service Agreement.
Except as otherwise expressly permitted in these Terms, you will not: (a) reproduce, modify, adapt or create derivative works of the Cloud Products; (b) rent, lease, distribute, sell, sublicense, transfer or provide access to the Cloud Products to a third party; (c) use the Cloud Products for the benefit of any third party; (d) incorporate any Cloud Products into a product or service you provide to a third party; (e) interfere with or otherwise circumvent mechanisms in the Cloud Products intended to limit your use; (f) reverse engineer, disassemble, decompile, translate or otherwise seek to obtain or derive the source code, underlying ideas, algorithms, file formats or non-public APIs to any Cloud Products, except to the extent expressly permitted by applicable law (and then only upon advance notice to us); (g) remove or obscure any proprietary or other notices contained in any Cloud Product; (h) use the Cloud Products for competitive analysis or to build competitive products; (i) publicly disseminate information regarding the performance of the Cloud Products; or (j) encourage or assist any third party to do any of the foregoing.
4. Security and Data
We implement and maintain physical, technical and administrative security measures designed to protect Your Data from unauthorized access, destruction, use, modification, or disclosure.
Nothing in these Terms prevents us from disclosing Your Data to the extent required by law, subpoenas or court orders.
4.4. Openware Use Of Your Data
You retain all right, title and interest in and to Your Data in the form submitted to the Cloud Products. Subject to these Terms, and solely to the extent necessary to provide the Cloud Products to you, you grant us a worldwide, limited term license to access, use, process, copy, distribute, perform, export, and display Your Data. Solely to the extent that reformatting Your Data for display in a Cloud Product constitutes a modification or derivative work, the foregoing license also includes the right to make modifications and derivative works. We may also access your accounts, End User Accounts, and your Cloud Products with End User permission in order to respond to your support requests.
4.5. Your Data Compliance Obligations
You and your use of Cloud Products (including use by your End Users) must comply at all times with these Terms, and all applicable Laws. You represent and warrant that: (i) you have obtained all necessary rights, releases and permissions to submit all Your Data to the Cloud Products and to grant the rights granted to us in these Terms and (ii) Your Data and its submission and use as you authorize in these Terms will not violate (1) any Laws, (2) any third-party intellectual property, privacy, publicity or other rights, or (3) any of your or third-party policies or terms governing Your Data. Other than our express obligations under Section 4 (Our security and data privacy policies), we assume no responsibility or liability for Your Data, and you are solely responsible for Your Data and the consequences of submitting and using it with the Cloud Products.
4.6. Your Indemnity
You will defend, indemnify and hold harmless us (and our Affiliates, officers, directors, agents and employees) from and against any and all claims, costs, damages, losses, liabilities and expenses (including reasonable attorneys’ fees and costs) resulting from any claim arising from or related to (i) your breach of Section 2.3 (End User Consent) or any claims or disputes brought by your End Users arising out of their use of Cloud Products, (ii) your breach (or alleged breach) of Sections 4.5 (Your Data Compliance Obligations) or; or (iii) Your Materials. This indemnification obligation is subject to you receiving (a) prompt written notice of such claim (but in any event notice in sufficient time for you to respond without prejudice); (b) the exclusive right to control and direct the investigation, defense or settlement of such claim and (c) all reasonably necessary cooperation by us at your expense.
4.7. Removals and Suspension
We have no obligation to monitor any content uploaded to the Cloud Products. Nonetheless, if we deem such action necessary based on your violation of these Terms we may (1) remove Your Data from the Cloud Products or (2) suspend your access to the Cloud Products. We will use reasonable efforts to provide you with advance notice of removals and suspensions when practicable, but if we determine that your actions endanger the operation of the Cloud Product or other users, we may suspend your access or remove Your Data immediately without notice. We have no liability to you for removing or deleting Your Data from or suspending your access to any Cloud Products.
5. Third-party Products
5.1. Third-Party Products
You (including your End Users) may choose to use or procure other third-party products or services in connection with the Cloud Products, including Third Party Apps or implementation, customization, training or other services. Your receipt or use of any third-party products or services (and the third parties’ use of any of Your Data) is subject to a separate agreement between you and the third-party provider. If you enable or use third party products or services with the Cloud Products, we will allow the third-party providers to access or use Your Data as required for the interoperation of their products and services with the Cloud Products. This may include transmitting, transferring, modifying or deleting Your Data, or storing Your Data on systems belonging to the third-party providers or other third parties. Any third-party provider’s use of Your Data is subject to the applicable agreement between you and such third-party provider.
We are not responsible for any access to or use of Your Data by third party providers or their products or services, or for the security or privacy practices of any third-party provider or its products or services. You are solely responsible for your decision to permit any third-party provider or third party product or service to use Your Data. It is your responsibility to carefully review the agreement between you and the third-party provider, as provided by the applicable third party provider. WE DISCLAIM ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY PRODUCTS OR SERVICES (WHETHER SUPPORT, AVAILABILITY, SECURITY OR OTHERWISE) OR FOR THE ACTS OR OMISSIONS OF ANY THIRD PARTY PROVIDERS OR VENDORS.
6. Additional Services
6.1. Additional Services
Subject to these Terms, you may purchase Additional Services that we will provide to you pursuant to the applicable Order. Additional Services may be subject to additional policies and terms as specified by us.
6.2. Our Deliverables
We will retain all right, title and interest in and to Our Deliverables. You may use any of Our Deliverables provided to you only in connection with the Cloud Products, subject to the same usage rights and restrictions as for the Cloud Products. For clarity, Our Deliverables are not considered Cloud Products, and any Cloud Products are not considered to be Our Deliverables.
6.3. Your Materials
You agree to provide us with reasonable access to Your Materials as reasonably necessary for our provision of Additional Services. If you do not provide us with timely access to Your Materials, our performance of Additional Services will be excused until you do so. You retain your rights in Your Materials, subject to our ownership of any Cloud Products, any of Our Deliverables or any of Our Technology underlying Your Materials. We will use Your Materials solely for purposes of performing the Additional Services. You represent and warrant that you have all necessary rights in Your Materials to provide them to us for such purposes.
Openware provides training to customers in the form of videos and guides.
7. Billing, renewals, and payment
7.1. Monthly and Annual Plans
All Cloud Products are offered either on a monthly subscription basis or an annual subscription basis. Applicable Fees can be found on the Openware Price List.
Except as otherwise specified in your Order, unless either party cancels your subscription prior to expiration of the current Subscription Term, your subscription will automatically renew for another Subscription Term of a period equal to your initial Subscription Term. You will provide any notice of non-renewal through the means we designate. Cancelling your subscription means that you will not be charged for the next billing cycle, but you will not receive any refunds or credits for amounts that have already been charged. All renewals are subject to the applicable Cloud Product continuing to be offered and will be charged at the then-current rates.
7.3. Adding Users
You may add users, increase storage limits, or otherwise increase your use of Cloud Products by placing a new Order or modifying an existing Order. Unless otherwise specified in the applicable Order, we will charge you for any increased use at our then-current rates, prorated for the remainder of the then-current Subscription Term.
You will pay all fees in accordance with each Order, by the due dates and in the currency specified in the Order. Other than as expressly set forth in Section 7.6, 13.3, or Section 18, all amounts are non-refundable, non-cancelable and non-creditable. You agree that we may bill your credit card or other payment method for renewals, additional users, overages to set limits or scopes of use, expenses, and unpaid fees, as applicable.
We will deliver the login instructions for Cloud Products to your account or through other reasonable means no later than when we have received payment of the applicable fees. You are responsible for accessing your account to determine that we have received payment and that your Order has been processed. All deliveries under these Terms will be electronic.
7.6. Returns & Refunds
Unless otherwise stated in this Agreement, any fees and payments paid by You to Openware under this Agreement are not refundable, even if either party terminates this Agreement.
7.7. Future Functionality
You acknowledge that the Cloud Products and Additional Services referenced in an Order are being purchased separately from any of our other products or services. Payment obligations for any products or services are not contingent on the purchase or use of any of our other products (and for clarity, any purchases of Cloud Products and Additional Services are separate and not contingent on each other, even if listed on the same Order). You agree that your purchases are not contingent on the delivery of any future functionality or features (including future availability of any Cloud Products beyond the current Subscription Term), or dependent on any oral or written public comments we make regarding future functionality or features.
8. Intellectual Property Rights and Feedback
Cloud Products are made available on a limited access basis, and no ownership right is conveyed to you, irrespective of the use of terms such as “purchase” or “sale”. We and our licensors have and retain all right, title and interest, including all intellectual property rights, in and to Our Technology (including the Cloud Products). From time to time, you may choose to submit Feedback to us. We may in connection with any of our products or services freely use, copy, disclose, license, distribute and exploit any Feedback in any manner without any obligation, royalty or restriction based on intellectual property rights or otherwise. No Feedback will be considered your Confidential Information, and nothing in these Terms limits our right to independently use, develop, evaluate, or market products or services, whether incorporating Feedback or otherwise.
Except as otherwise set forth in these Terms, each party agrees that all code, inventions, know-how and business, technical and financial information disclosed to such party (“Receiving Party”) by the disclosing party ("Disclosing Party") constitute the confidential property of the Disclosing Party (“Confidential Information”), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential or proprietary due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any of Our Technology and any performance information relating to the Cloud Products will be deemed our Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will (1) hold in confidence and not disclose any Confidential Information to third parties and (2) not use Confidential Information for any purpose other than fulfilling its obligations and exercising its rights under these Terms. The Receiving Party may disclose Confidential Information to its employees, agents, contractors and other representatives having a legitimate need to know, provided that they are bound to confidentiality obligations no less protective of the Disclosing Party than this Section and that the Receiving Party remains responsible for compliance by them with the terms of this Section. The Receiving Party's confidentiality obligations will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information. The Receiving Party may also disclose Confidential Information if so required pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
10. Term and Termination
These Terms are effective as of the Effective Date and expire on the date of expiration or termination of all Subscription Terms.
10.2. Termination for Cause
Either party may terminate these Terms (including all related Orders) if the other party (a) fails to cure any material breach of these Terms within thirty (30) days after notice; (b) ceases operation without a successor; or (c) seeks protection under any bankruptcy, receivership, trust deed, creditors’ arrangement, composition or comparable proceeding, or if any such proceeding is instituted against that party (and not dismissed within sixty (60) days thereafter).
10.3. Termination for Convenience
You may choose to stop using the Cloud Products and terminate these Terms (including all Orders) at any time for any reason upon written notice to us. Upon any such termination (i) you will not be entitled to a refund of any pre-paid fees and (ii) if you have not already paid all applicable fees for the then-current Subscription Term or related services period (as applicable), any such fees that are outstanding will become immediately due and payable.
10.4. Effects of Termination
Upon any expiration or termination of these Terms, you must cease using all Cloud Products and delete (or at our request, return) all Confidential Information or other materials of ours in your possession, including on any third-party systems operated on your behalf. You will certify such deletion upon our request. You will not have access to Your Data (and we may delete all of Your Data unless legally prohibited) after expiration or termination of these Terms (or its applicable Subscription Term), so you should make sure to export Your Data using the functionality of the Cloud Products during the applicable Subscription Term. If you terminate these Terms in accordance with Section 10.2 (Termination for Cause), we will refund you any prepaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. If we terminate these Terms in accordance with Section 10.2 (Termination for Cause), you will pay any unpaid fees covering the remainder of the then-current Subscription Term after the effective date of termination. In no event will termination relieve you of your obligation to pay any fees payable to us for the period prior to the effective date of termination. Except where an exclusive remedy may be specified in these Terms, the exercise by either party of any remedy, including termination, will be without prejudice to any other remedies it may have under these Terms, by law or otherwise.
The following provisions will survive any termination or expiration of these Terms: Sections 3.3 (Restrictions), 4.6 (Your Indemnity), 5.1 (Third-Party Products), 7.4 (Payment), 10 (IP Rights in the Cloud Products and Feedback), 11 (Confidentiality), 12 (Term and Termination), 13.4 (Warranty Disclaimer), 14 (Limitations of Liability), 16 (Dispute Resolution) and 20 (General Provisions).
11. Warranties and Disclaimer
11.1. Mutual Warranties
Each party represents and warrants that it has the legal power and authority to enter into these Terms.
11.2. Our Warranties
We warrant, for your benefit only, that we use commercially reasonable efforts to prevent introduction of viruses, Trojan horses or similar harmful materials into the Cloud Products (but we are not responsible for harmful materials submitted by you or End Users) (the “Performance Warranty”).
11.3. Warranty Remedy
We will use commercially reasonable efforts, at no charge to you, to correct reported non-conformities with the Performance Warranty. If we determine corrections to be impracticable, either party may terminate the applicable Subscription Term. In this case, you will receive a refund of any fees you have pre-paid for use of the Cloud Product for the terminated portion of the applicable Subscription Term. The Performance Warranty will not apply: (i) unless you make a claim within thirty (30) days of the date on which you first noticed the non-conformity, (ii) if the non-conformity was caused by misuse, unauthorized modifications or third-party products, software, services or equipment or (iii) to No-Charge Products. Our sole liability, and your sole and exclusive remedy, for any breach of the Performance Warranty are set forth in this Section 11.
11.4. WARRANTY DISCLAIMER
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 11, ALL CLOUD PRODUCTS, SUPPORT AND ADDITIONAL SERVICES ARE PROVIDED “AS IS,” AND WE AND OUR SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND, INCLUDING ANY WARRANTY OF NON-INFRINGEMENT, TITLE, FITNESS FOR A PARTICULAR PURPOSE, FUNCTIONALITY OR MERCHANTABILITY, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING OUR EXPRESS OBLIGATIONS IN THESE TERMS, WE DO NOT WARRANT THAT YOUR USE OF THE CLOUD PRODUCTS WILL BE UNINTERRUPTED OR ERROR-FREE, THAT WE WILL REVIEW YOUR DATA FOR ACCURACY OR THAT WE WILL PRESERVE OR MAINTAIN YOUR DATA WITHOUT LOSS. YOU UNDERSTAND THAT USE OF THE CLOUD PRODUCTS NECESSARILY INVOLVES TRANSMISSION OF YOUR DATA OVER NETWORKS THAT WE DO NOT OWN, OPERATE OR CONTROL, AND WE ARE NOT RESPONSIBLE FOR ANY OF YOUR DATA LOST, ALTERED, INTERCEPTED OR STORED ACROSS SUCH NETWORKS. WE CANNOT GUARANTEE THAT OUR SECURITY PROCEDURES WILL BE ERROR-FREE, THAT TRANSMISSIONS OF YOUR DATA WILL ALWAYS BE SECURE OR THAT UNAUTHORIZED THIRD PARTIES WILL NEVER BE ABLE TO DEFEAT OUR SECURITY MEASURES OR THOSE OF OUR THIRD-PARTY SERVICE PROVIDERS. WE WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR OTHER SYSTEMS OUTSIDE OUR REASONABLE CONTROL. YOU MAY HAVE OTHER STATUTORY RIGHTS, BUT THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF ANY, WILL BE LIMITED TO THE SHORTEST PERIOD PERMITTED BY LAW.
12. Limitation of Liability
12.1. Consequential Damages Waiver
EXCEPT FOR EXCLUDED CLAIMS (AS DEFINED BELOW), NEITHER PARTY (NOR ITS SUPPLIERS) WILL HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS FOR ANY LOSS OF USE, LOST OR INACCURATE DATA, LOST PROFITS, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, COSTS OF DELAY, OR ANY INDIRECT, SPECIAL, INCIDENTAL, RELIANCE OR CONSEQUENTIAL DAMAGES OF ANY KIND, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE.
12.2. Liability Cap
EXCEPT FOR EXCLUDED CLAIMS, EACH PARTY’S AND ITS SUPPLIERS’ AGGREGATE LIABILITY TO THE OTHER ARISING OUT OF OR RELATED TO THESE TERMS WILL NOT EXCEED THE AMOUNT ACTUALLY PAID OR PAYABLE BY YOU TO US UNDER THESE TERMS IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM.
12.3. Excluded Claims
“Excluded Claims” means (1) amounts owed by you under any Orders, (2) either party’s express indemnification obligations in these Terms, and (3) your breach of Section 3.3 (Restrictions).
12.4. Nature of Claims and Failure of Essential Purpose
The parties agree that the waivers and limitations specified in this apply regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise and will survive and apply even if any limited remedy specified in these Terms is found to have failed of its essential purpose.
13. Publicity Rights
We may identify you as an Openware customer in our promotional materials. We will promptly stop doing so upon your request sent to [email protected].
14. Dispute Resolution
14.1. Informal Resolution
In the event of any controversy or claim arising out of or relating to these Terms, the parties will consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach settlement within a period of sixty (60) days, either party may pursue relief as may be available under these Terms pursuant to Section 14.2 (Governing Law; Jurisdiction). All negotiations pursuant to this Section 14.1 will be confidential and treated as compromise and settlement negotiations for purposes of all rules and codes of evidence of applicable legislation and jurisdictions.
14.2. Governing Law; Jurisdiction
This Agreement will be governed by and construed in accordance with the applicable laws of England and Wales. Each party irrevocably agrees that any legal action, suit or proceeding arising out of or related to this Agreement must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of England and Wales and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in England generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party. In any action or proceeding to enforce a party’s rights under this Agreement, the prevailing party will be entitled to recover its reasonable costs and attorneys’ fees.
14.3. Injunctive Relief; Enforcement
Nothing in these Terms will prevent us from seeking injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
14.4. Exclusion of UN Convention and UCITA
The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to these Terms. The Uniform Computer Information Transactions Act (UCITA) will not apply to these Terms regardless of when or where adopted.
15. Export Restrictions
The Cloud Products are subject to export restrictions by the United States government and may be subject to import restrictions by certain foreign governments, and you agree to comply with all applicable export and import laws and regulations in your access to, use of, and download of the Cloud Products (or any part thereof). You shall not (and shall not allow any third-party to) remove or export from the United States or allow the export or re-export of any part of the Cloud Products or any direct product thereof: (a) into (or to a national or resident of) any embargoed or terrorist-supporting country; (b) to anyone on the U.S. Commerce Department’s Denied Persons, Entity, or Unverified Lists or the U.S. Treasury Department’s list of Specially Designated Nationals and Consolidated Sanctions list (collectively, “Prohibited Persons”); (c) to any country to which such export or re-export is restricted or prohibited, or as to which the United States government or any agency thereof requires an export license or other governmental approval at the time of export or re-export without first obtaining such license or approval; or (d) otherwise in violation of any export or import restrictions, laws or regulations of any United States or foreign agency or authority. You represent and warrant that (i) you are not located in, under the control of, or a national or resident of any such prohibited country and (ii) none of Your Data is controlled under the U.S. International Traffic in Arms Regulations or similar Laws in other jurisdictions. You also certify that you are not a Prohibited Person nor owned, controlled by, or acting on behalf of a Prohibited Person. You agree not to use or provide the Cloud Products for any prohibited end use, including to support any nuclear, chemical, or biological weapons proliferation, or missile technology, without the prior permission of the United States government.
16. Changes to these Terms
We may modify the terms and conditions of these Terms (including Our Policies) from time to time, with notice to you in accordance with Section 18.1 (Notices) or by posting the modified Terms on our website. Together with notice, we will specify the effective date of the modifications.
16.1. Paid Subscriptions
Except as otherwise indicated below, modifications to these Terms will take effect at the next renewal of your Subscription Term and will automatically apply as of the renewal date unless you elect not to renew. Notwithstanding the foregoing, in some cases (e.g., to address compliance with Laws, or as necessary for new features) we may specify that such modifications become effective during your then-current Subscription Term. If the effective date of such modifications is during your then-current Subscription Term and you object to the modifications, then (as your exclusive remedy) you may terminate your affected Orders upon notice to us, and we will refund you any fees you have pre-paid for use of the affected Cloud Products for the terminated portion of the applicable Subscription Term. To exercise this right, you must provide us with notice of your objection and termination within thirty (30) days of us providing notice of the modifications. For the avoidance of doubt, any Order is subject to the version of these Terms in effect at the time of the Order.
16.2. Our Policies
We may modify Our Policies to take effect during your then-current Subscription Term in order to respond to changes in our products, our business, or Laws. In this case, unless required by Laws, we agree not to make modifications to Our Policies that, considered as a whole, would substantially diminish our obligations during your then-current Subscription Term. Modifications to Our Policies will take effect automatically as of the effective date specified for the updated policies.
17. Changes to the Cloud Products
You acknowledge that the Cloud Products are on-line, subscription-based products, and that in order to provide improved customer experience we may make changes to the Cloud Products, and we may update the applicable Documentation accordingly. Subject to our obligation to provide Cloud Products and Additional Services under existing Orders, we can discontinue any Cloud Products, any Additional Services, or any portion or feature of any Cloud Products for any reason at any time without liability to you.
18. General Provisions
Any notice under these Terms must be given in writing. We may provide notice to you through your Notification Email Address, your account or in-product notifications. You agree that any electronic communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Any notice to you will be deemed given upon the first business day after we send it. You will provide notice to us by post to Openware Inc., 611 Gateway Blvd, Suite 120, South San Francisco, California, 94080, USA, Attn: Legal Officer. Your notices to us will be deemed given upon receipt.
18.2. Force Majeure
Neither party will be liable to the other for any delay or failure to perform any obligation under these Terms (except for a failure to pay fees) if the delay or failure is due to events which are beyond the reasonable control of such party, such as a strike, blockade, war, act of terrorism, riot, natural disaster, failure or diminishment of power or telecommunications or data networks or services, or refusal of a license by a government agency.
You may not assign or transfer these Terms without our prior written consent. As an exception to the foregoing, you may assign these Terms in their entirety (including all Orders) to your successor resulting from a merger, acquisition, or sale of all or substantially all of your assets or voting securities, provided that you provide us with prompt written notice of the assignment and the assignee agrees in writing to assume all of your obligations under these Terms. Any attempt by you to transfer or assign these Terms except as expressly authorized above will be null and void. We may assign our rights and obligations under these Terms (in whole or in part) without your consent. We may also permit our Affiliates, agents and contractors to exercise our rights or perform our obligations under these Terms, in which case we will remain responsible for their compliance with these Terms. Subject to the foregoing, these Terms will inure to the parties’ permitted successors and assigns.
18.4. Government End Users
The Cloud Product and Documentation are “commercial items” as that term is defined at FAR 2.101. If You are the US Federal Government (Government) Executive Agency (as defined in FAR 2.101), Openware provides the Software and Documentation, including any related technical data, and/or professional services in accordance with the following: If acquired by or on behalf of any Executive Agency (other than an agency within the Department of Defense (DoD), the Government acquires, in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Computer Software), only those rights in technical data and software customarily provided to the public as defined in this Agreement. If acquired by or on behalf of any Executive Agency within the DoD, the Government acquires, in accordance with DFARS 227.7202-3 (Rights in commercial computer software or commercial computer software documentation), only those rights in technical data and software customarily provided in this Agreement. In addition, DFARS 252.227-7015 (Technical Data – Commercial Items) applies to technical data acquired by DoD agencies. Any Federal Legislative or Judicial Agency shall obtain only those rights in technical data and software customarily provided to the public as defined in this Agreement. If any Federal Executive, Legislative, or Judicial Agency has a need for rights not conveyed under the terms described in this Section, it must negotiate with Openware to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement to be effective. If this Agreement fails to meet the Government’s needs or is inconsistent in any way with Federal law, and the parties cannot reach a mutual agreement on terms for this Agreement, the Government agrees to terminate its use of the Software and Documentation and return the Software and Documentation and any other software or technical data delivered as part of the Software and Documentation, unused, to Openware. This U.S. Government Rights clause in this Section is in lieu of, and supersedes, any other FAR, DFARS, or other clause, provision, or supplemental regulation that addresses Government rights in computer software or technical data under this Agreement.
18.5. Entire Agreement
These Terms are the entire agreement between you and us relating to the Cloud Products and any other subject matter covered by these Terms and supersede all prior or contemporaneous oral or written communications, proposals and representations between you and us with respect to the Cloud Products or any other subject matter covered by these Terms. No provision of any purchase order or other business form employed by you will supersede or supplement the terms and conditions of these Terms, and any such document relating to these Terms will be for administrative purposes only and will have no legal effect.
18.6. Waivers; Modifications
No failure or delay by the injured party to these Terms in exercising any right, power or privilege hereunder will operate as a waiver thereof, nor will any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. Except as set forth in Section 16 (Changes to these Terms), any amendments or modifications to these Terms must be executed in writing by an authorized representative of each party.
As used herein, “including” (and its variants) means “including without limitation” (and its variants). Headings are for convenience only. If any provision of these Terms is held to be void, invalid, unenforceable or illegal, the other provisions will continue in full force and effect.
18.8. Independent Contractors
The parties are independent contractors. These Terms will not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give either party the express or implied right, power or authority to create any duty or obligation of the other party.
19. Service Level Agreement
The purpose of this paragraph is to define the specific measures taken by Openware to ensure compliance with the specified requirements and to guarantee the quality of the services provided, the service levels being defined and measurable with the help of indicators.
The services provided to the customer are defined in the present Agreement.
The following definitions are in addition to those set out in the Article "Definition" of the Agreement.
|Severity 1: Breach||Security breach; System is under attack||24x7|
|Severity 2: Critical||Business operations have been severely disrupted||24x7|
|Severity 3: Major||The program is usable but severely limited||24x7|
|Severity 4: Minor||An issue affects some but not all of the end-users||8x5|
|Severity 5: Cosmetic||Cosmetic issues or general software usage questions||8x5|
The terms defined below shall have the following meanings between the Parties:
- “Security issue” (severity 1): means a situation where:
a. The customers deposits are at risks;
b. The Platform is under DDos;
c. A hacking attack has been detected through IDS;
- “Critical issue” (severity 2): means an anomaly that causes:
a. Complete loss of service or a significant feature that is completely unavailable and no workaround exists;
b. All or a substantial portion of mission-critical data is at significant risk of loss or corruption;Substantial loss of service;
c. Business operations have been severely disrupted.
- “Major issue” (severity 3): means an anomaly that causes:
a. Critical loss of application functionality or performance resulting in a high number of users unable to perform their normal functions;
b. Major feature/product failure;
c. Inconvenient workaround or no workaround exists;
d. The program is usable but severely limited.
- “Minor issue” (severity 4): means an anomaly that causes:
a. The customer is able to use the software; however, there is a non-critical loss of functionality;
b. The functionality of some components is impaired, but allows the users to continue using the software;
c. The problem does not have a significant impact to the Customer or occurs in functionality that is not critical or frequently used;
d. An issue affects some but not all of the end-users.
- “Cosmetic issue“ (severity 5): means an anomaly that causes:
a. A minor cosmetic issues or general software/functionality usage questions;
b. Information and documentation requests.
- “Support”: means general software configuration and functionality usage questions, or operation, consulting and documentation requests.
The SLA is only covering severity levels 1, 2 and 3, while severity 4 and 5 are subject to review and different response time according to the customer plans listed below.
Working times for Severity levels: 4, 5 are hours within the days of business week. Monday to Friday, 9 am to 6 pm.
Service level for incidents of Severity levels: 1, 2 and 3. Reaction time is under 1 hour and solution time is on best efforts;
19. 3 Examples
Severity 1: Breach Defined as a security incident whereby confidential, safeguarded, or sensitive data are copied, observed, stolen, transferred, or used by an unauthorized person. As an admin I may lose control over the admin panel and personal customer’s data.
Severity 2: Critical As a user I am not able to deposit, withdraw, create orders and orders are not matched.
Severity 3: Major As a user I am not able to deposit, withdraw a specific currency.
As a user my Ethereum deposit address does not generate.
Severity 4: Minor As an admin I have an issue when creating a new market pair.
Severity 5: Cosmetic Bugs of low severity are generally found in the user interface. It may be the wrong size of the button, too dark or light color of an object. Such errors have little impact on the program functions.
19.4 Support response time
Severity 1, 2 and 3 are handled immediately when reported with a resolution at best efforts. Severity 4 and 5 are handled during Openware business hours. Customers must report them using the support desk. Customer support commitment is on response time is 1 business day.
Any support request received after 6 p.m. on Friday or during the weekend or on a public holiday shall be deemed to have been registered and taken into account on the first following working day at 9 a.m.
However, the customer may request the introduction of on-call duty, for non-working hours and days. In this context, Openware will send the customer a proposal mentioning the applicable conditions and rates. Acceptance of the proposal will result in the on-call duty being imposed.
If the SLA Uptime period of the Customer’s platform per one month of services is less than agreed, penalty is applied to Openware:
Monthly downtime tolerance: 7h 18m
|Current month fees waived|
Monthly downtime tolerance: 43m 49s
|Current month fees waived|
Such penalty is credited to the Customer's account and will be deducted from next Monthly fee.
Customer may request priority support on top of the standard package through the Account Manager.
The Parties agreed that the amount of penalty for each month should not exceed 100% of Monthly fee according to the agreed Order Form and this Schedule.
The calculation of Uptime commitment excludes instances of: force major events, scheduled maintenance, or emergency maintenance. Scheduled maintenance means Openware may conduct up to five (5) hours per calendar month of scheduled maintenance for purposes of performing maintenance on the Platform, or installing upgrades, fixes or reconfigurations at his own expense. The Parties agreed that maintenance does not affect the timing of Scheduled maintenance, or emergency maintenance. Emergency maintenance means Openware may conduct emergency maintenance but with notice in order to resolve server security issues or other emergency issues. Openware will use best endeavours to notify Customer at the beginning and end of such maintenance, and will provide details on the nature of the work being performed.
Certain capitalized terms are defined in this section and others are defined contextually in these Terms.
“Additional Services” means Help Desk services, additional training or other services related to the Cloud Products we provide to you, as identified in an Order.
“Administrators” mean the personnel designated by you who administer the Cloud Products to End Users on your behalf.
“Affiliate” means an entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with a party, where “control” means the power to direct the management or affairs of an entity, and “ownership” means the beneficial ownership of greater than 50% of the voting equity securities or other equivalent voting interests of the entity.
“Cloud Products” means our hosted or cloud-based solutions (currently designated as “Cloud” deployments), including any client software we provide as part of the Cloud Products.
“Documentation” means our standard published documentation for the Cloud Products.
“End User” means an individual you or an Affiliate permits or invites to use the Cloud Products. For the avoidance of doubt: (a) individuals invited by your End Users, (b) individuals under managed accounts, and (c) individuals interacting with a Cloud Product as your customer are also considered End Users.
“End User Account” means an account established by you or an End User to enable the End User to use or access a Cloud Product.
“Feedback” means comments, questions, ideas, suggestions or other feedback relating to the Cloud Products, Support or Additional Services.
“HIPAA” means the Health Insurance Portability and Accountability Act, as amended and supplemented.
“Laws” means all applicable local, state, federal and international laws, regulations and conventions, including those related to data privacy and data transfer, international communications and the exportation of technical or personal data.
“Notification Email Address” means the email address(es) you used to register for a Cloud Product account or otherwise sign up for a Cloud Product. It is your responsibility to keep your email address(es) valid and current so that we are able to send notices, statements, and other information to you.
“Order” means Openware’s applicable online order page(s), flows, in-product screens or other Openware-approved ordering document or process describing the products and services you are ordering from us and, as applicable, their permitted scope of use. As applicable, the Order will identify: (i) the Cloud Products, (ii) the number of End Users, Subscription Term, domain(s) associated with your use of Cloud Products, storage capacity or limits, or other scope of use parameters and (iii) (for paid Orders) the amount or rate you will be charged, the billing and renewal terms, applicable currency, and form of payment. Orders may also include Additional Services and No-Charge Products.
“Our Deliverables” means any materials, deliverables, modifications, derivative works or developments that we provide in connection with any Additional Services.
“Our Technology” means the Cloud Products, Our Deliverables, their “look and feel”, any and all related or underlying technology and any modifications or derivative works of the foregoing, including as they may incorporate Feedback.
“PCI DSS” means the Payment Card Industry Data Security Standards.
“PO” means a purchase order.
“Sensitive Personal Information” means any (i) special categories of personal data enumerated in European Union Regulation 2016/679, Article 9(1) or any successor legislation; (ii) patient, medical or other protected health information regulated by HIPAA; (iii) credit, debit or other payment card data subject to PCI DSS; (iv) other personal information subject to regulation or protection under specific laws such as the Gramm-Leach-Bliley Act (or related rules or regulations); (v) social security numbers, driver’s license numbers or other government ID numbers; or (vi) any data similar to the foregoing that is protected under foreign or domestic laws or regulations.
“Subscription Term” means your permitted subscription period for a Cloud Product, as set forth in the applicable Order.
“Support” means support for the Cloud Products. Your Support level will be specified in the applicable Order.
“Training” means Openware-provided training.
“Your Data” means any data, content, code, video, images or other materials of any type that you (including any of your End Users) submit to Cloud Products. In this context, “submit” (and any similar term) includes submitting, uploading, transmitting or otherwise making available Your Data to or through the Cloud Products.
“Your Materials” means your materials, systems, personnel or other resources.
If you have any questions regarding this License Agreement, please contact us by sending an email to [email protected].