The Fine Print
This Customer Terms of Service (“Customer Terms of Service” or “Agreement”) governs your (“your, “you” or “Customer”) use of services of Open Systems AG and its Affiliates (“Open Systems”, “we”, “us” and “our”). By executing a Service Order for any Open Systems Offerings (defined below) and/or otherwise accessing, using, or receiving such Open Systems Offerings, you agree to this Customer Terms of Service. Unless already defined, all capitalized terms shall have the meaning in Section A below.
This Customer Terms of Service is structured into the following sections:
- DEFINITIONS – This includes key defined terms used throughout the Agreement. Please review these defined terms carefully as they provide a roadmap to this Agreement.
- STANDARD SERVICES TERMS – We only offer cloud-delivered subscription services in an “as a Service” model, and from time to time, limited Consulting Services. These terms frame the Open Systems Offerings.
- PROCURE TO PAY TERMS – These terms only apply when you purchase directly from Open Systems. You procure to pay terms with an Approved Source are between you and that Approved Source; provided, however, your actual use of the Subscription Services and/or Consulting Services that are provided by us will be governed by the terms in this Agreement other than Section C below.
- GENERAL LEGAL TERMS – The remaining legal terms that make up this Customer Terms of Service are standard customary terms that one finds for the services we provide.
We may provide you with Supplemental Terms of Service from time to time for certain Open Systems Offerings or Third Party Offerings, as further set forth herein.
“Agreement” or “Customer Terms of Service” means this Agreement, any applicable Supplemental Terms of Service and any Service Order.
“Activation Period” means, if applicable for a Subscription Service, the period during which such Subscription Service is implemented and activated for Customer use prior to the start of the Subscription Service Term.
“Affiliate” means with respect to a Party, any entity which directly or indirectly controls, is controlled by or is under common control with such Party (where “control”, “controlled by” or “under common control” means the direct or indirect possession of more than fifty percent (50%) of the votes of holders of a corporation’s voting securities, or a comparable equity or other ownership interest in any other type of entity);
“Approved Source” means an Open Systems’ authorized channel partner, such as a value-added reseller.
“Consulting Services” means any non-subscription professional services such as training, implementation, activation, or other consulting services that we provide to you in support of the Subscription Services and pursuant to a Service Order.
“Customer Data” means any electronic data, content, information or software of Customer or its licensors, including without limitation any Personal Data, that Open Systems filters, stores, accesses, transmits or otherwise processes or uses in performing the Open Systems Offerings for Customer, including, without limitation, any Customer emails or other data traffic, but excluding Telemetry Data.
“Data Protection Laws” means all applicable laws and regulations related to data privacy, Personal Data, and its exportation, including the Data Protection Act of Switzerland (“Swiss DPA”) and the European Union General Data Protection Regulation (“GDPR”).
“Device” means an Open Systems owned (or if applicable, leased) physical device or virtualized instance that we deploy to your Site(s), whether such Site(s) are physical locations or in your (or your third party hosting provider’s) cloud in order to activate and deliver the Subscription Services as further described in the Documentation.
“Documentation” means the documentation published by Open Systems that describes the features and functionality of the Open Systems Offerings.
“Fees” means the fees paid by Customer to Open Systems or an Approved Source, as the case may be, for the Subscription Services, Consulting Services, or Third Party Offerings as set forth on a Service Order.
“Open Systems Offerings” means the Subscription Services and the Consulting Services that Open Systems makes available to you, from time to time, pursuant to a Service Order.
“Party” or “Parties” means you and us, individually or collectively, as applicable.
“Personal Data” means any information (in any form) that identifies, or is reasonably capable of being identified with, a person that Customer discloses or makes available to, or is collected by, Open Systems in connection with the Open Systems Offerings;
“Service Order” means a separate document provided by Open Systems or an Approved Source that sets forth the specific Subscription Services, Consulting Services and/or, if applicable, Third Party Offerings ordered by Customer. Each Service Order shall be signed and accepted by you (with an Approved Source, if applicable) and will be binding on us and you, subject to this Agreement (except as otherwise provided herein if the Service Order is with an Approved Source) and incorporate its terms and conditions by reference.
“Site” means the physical site or facility where the Device(s) are to be deployed or installed.
“Software” means a virtualized instance of a Device and/or other software code for Customer’s use on its premises or its cloud environment that is licensed to Customer and provided with the Subscription Services.
“Subscription Service(s)” means the subscription services that Open Systems makes available to Customer during the Subscription Service Term pursuant to the applicable Service Order and Documentation. Subscription Services include Subscription Support Services without separate Fees.
“Subscription Service Term” means the duration of each Subscription Service, as specified in the applicable Service Order.
“Subscription Support Services” means the support, maintenance, and monitoring services that we provide you as part of the Subscription Services during the Subscription Term.
“Supplemental Terms of Service” means terms of service, supplemental to this Customer Terms of Service, (a) specific to certain Open Systems Offerings or Third Party Offerings, (b) for matters of local jurisdiction, and/or (c) for other Customer-specific considerations not addressed in this Customer Terms of Service.
“Telemetry Data” means logging, instrumentation, and analytics data generated by your use of the Open Systems Offerings and collected by a Device to enable Subscription Services’ features and functionality as specified in the Service Order and Documentation.
“Third Party Offering” means any product or service of a third party to which you have access to, or use of, as described in Section 20(b), which is subject to your agreement with the third party and, if applicable, a Supplemental Terms of Service with us, including those Third Party Offerings for which you may pay us directly pursuant to Section C of this Agreement.
“User” means Customer personnel, including third parties providing services on behalf of Customer, who access or receive the Subscription Services in whole or in part. Your initial User count shall be specified on the applicable Service Order and is part of the billing methodology for establishing Fees. For certain Subscription Services, we may make available to you, a User may also include a hardware device or software instance that is accessing or receiving the applicable Subscription Services independent of Customer personnel input or access.
“User Information Form” means an Open Systems form provided by you to Open Systems on a periodic basis representing your then-current User count, including, if applicable, any hardware device or software instance that is accessing or receiving the applicable Subscription Services.
STANDARD SERVICES TERMS
Open Systems Offerings; Conditions and Restrictions of Use.
- Provision of Open Systems Offerings. We will provide you with the Subscription Services and/or Consulting Services set forth on an applicable Service Order. To the extent specified in a Service Order, the Subscription Services may also include Devices and/or Software. Supplemental Terms of Service, if applicable, will be provided to you separately and in the event of conflict, the Supplemental Terms of Service shall take precedence over this Customer Terms of Service. We may fulfill, and if applicable, invoice you pursuant to Section C below for any of the Open Systems Offerings or Third-Party Offerings that you order through any of our Affiliates.
- Access to Subscription Services. During the Subscription Service Term, you may access and use Subscription Services solely for your own internal business purposes and only in accordance with the terms and conditions of this Agreement and any Documentation. For clarity, the Subscription Services are provided on a remote, as-a-service basis, and no software code will be provided to you (other than any Software that may be provided to you to allow you to use the Subscription Services). If Software is provided, you will have a non-exclusive, non-sublicensable, non-transferrable, limited license to, during the applicable Subscription Service Term, internally use such Software (in object code form only) solely as necessary to access and use the Subscription Services for the purposes for which they are provided and only in accordance with any applicable Documentation. If Software is provided as incorporated into or for incorporation in any Device, you will not use the Software in any other hardware or environment.
- Restrictions on Your Use of Open Systems Offerings. You shall not: (i) use any Device at any other Site other than the Site designated for its deployment; (ii) use any Software in any hardware or cloud environment other than the designated Device, as applicable; (iii) license, sublicense, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit or make the Open Systems Offerings available to any third party, other than your Users that does not exceed your User count (as applicable); (iv) alter, modify or create derivative works of the Open Systems Offerings or Documentation; (v) frame or mirror any content forming part of any Open Systems Offerings; (vi) reverse engineer, decompile, disassemble, or otherwise seek to obtain the source code of the Open Systems Offerings (or any component thereof) for any purpose; (vii) send to, store in, or transmit over the Open Systems Offerings and/or Devices any infringing, inappropriate, unlawful or tortious material or content or any malicious code (vii) access the Open Systems Offerings to build a product or service, or copy any ideas, features, functions or graphics of the Open Systems Offerings, or permit any third party to do the same; (ix) interfere with or disrupt the integrity or performance of the Open Systems Offerings or the data contained therein; (x) attempt to gain unauthorized access to the Open Systems Offerings or its related systems or networks; (xi) remove or obscure any proprietary or other notices contained in or on any Open Systems Offerings (including any Documentation); or (xii) publicly disseminate information regarding the performance of the Open Systems Offerings (such as benchmarking results).
- Your Responsibilities. You shall: (i) provide us with administrative and network access (to our reasonable satisfaction) to your environment (or that of your cloud environment, if applicable); (ii) ensure that you maintain and operate a proper and functioning physical and network infrastructure (including all applicable software, hardware, applications, systems, components, physical installation areas, electricity and grounding) required for the performance of the Open Systems Offerings as contemplated in this Agreement (ii) prevent unauthorized or unlawful access to, or use of, the Open Systems Offerings; (iv) maintain the security and integrity of the Open Systems Offerings (including any Device) to which you have access or which are in your possession or control; (v) perform your obligations in this Agreement and comply with Open Systems’ reasonable requests in connection with the Open Systems Offerings; and (vi) other than damage arising from normal wear and tear, reimburse us for any and all cost and expenses related to the replacement of any Device that is damaged, lost, stolen or compromised by any party (other than Open Systems), including the costs related to the purchase of any replacement Device or any shipping, transportation and logistics related to the return of the original Device to Open Systems and the delivery of the replacement Device to Customer.
User Count. Prior to each annual anniversary of a Subscription Service Term, we may request that you submit a User Information Form representing your current active User count for the Subscription Services. On such User Information Form, if the User count is greater than the initial User count designated in the Service Order, then, for subsequent annual periods of the Subscription Term, your applicable Fees therefor shall be adjusted accordingly at the pricing set forth on a revised Service Order to include such User count and you hereby agree to pay such increased amount in accordance with the terms herein for each subsequent annual period.
Activation Period. In the event that a Subscription Service requires an Activation Period, the term of such Activation Period will be expressly set forth in the applicable Service Order. During such Activation Period, Open Systems will perform Consulting Services for Customer to activate and implement such Subscription Service and Customer will timely perform its responsibilities and obligations, and promptly comply with all Open Systems’ requests, in connection therewith. This Agreement shall be in full force and effect during any applicable Activation Period. Consulting Services initiated during the Activation Period shall be deemed accepted no later than the end of the Activation Period unless otherwise expressly agreed in writing. For clarity, not all Subscription Services require an Activation Period, including a Subscription Service that you may order subsequent to an initial activation for a different Subscription Service. In the event that a Subscription Service requires an Activation Period and no such Activation Period is specified in the Service Order, the Activation Period shall be three (3) months or the completion of the applicable Consulting Services, whichever is shorter.
Subscription Support Services. The Subscription Support Services description is located at http://www.open-systems.com.
Use of Subcontractors or Subprocessors. We may use subcontractors in our reasonable discretion in the performance of any Open Systems Offerings ordered under this Agreement; provided, however, if such subcontractor is to act as a subprocessor and perform processing activities on any of your Personal Data that is subject to the Swiss DPA or the GDPR, we will be permitted to engage such subprocessor (“Subprocessor”) subject to the terms of this Section 5 so long that such Subprocessor agrees to comply with the terms of the Supplemental Terms of Service (for Data Protection Addendum) referenced in Section 6 below to the extent that such terms apply. Our website (currently posted at https://open-systems.com/subprocessor-statement) lists our current Subprocessors (with links to their subprocessors, where applicable). Your written consent shall be deemed given for our use of those Subprocessors listed as of the effective date of this Customer Terms of Service including for Subprocessors that are outside of Switzerland and the European Union. At least twenty (20) days before we engage any new Subprocessor, the aforementioned list of Subprocessors will be updated, and we will provide you with written notice of such update(s) via email or through an in-application notice. You shall be entitled to object to any new Subprocessor in writing within ten (10) days for material Data Protection Laws related reasons. If you do not object to such new Subprocessor within such period of time, you shall be deemed to have given your written consent to such new Subprocessor. Where a material Data Protection Laws related reason for such objection exists and failing an amicable resolution of this matter by the Parties, we may use such new Subprocessor, but you shall be entitled to terminate the affected Open Systems Offering(s) without any liability. We will remain fully responsible and liable to you for each subcontractor (including any subcontractor that is a Subprocessor). For the avoidance of any doubt, the following are not considered subcontractors to Open Systems: (a) vendors of software or hardware, telecommunications providers, logistics and data center service providers; and (b) any individuals or entities who provide services to Open Systems that will not have any access to your Personal Data.
Data Security. With respect to any Customer Data, we shall use commercially reasonable efforts to maintain the security and integrity of such Customer Data; and, with respect to any Customer Data that is Personal Data accessible by us we will maintain the security and integrity of such Personal Data in accordance with applicable Data Protection Laws (including the Swiss DPA and the GDPR) and the Supplemental Terms of Service (for Data Protection Addendum) located at http://www.open-systems.com. With respect to your Personal Data, you will also maintain the security and integrity of such Personal Data in accordance with applicable Data Protection Laws (including the Swiss DPA and GDPR) and the Supplemental Terms of Service (for Data Protection Addendum) referenced above.
PROCURE TO PAY TERMS
The terms of this Section C shall only apply to you if you are purchasing Subscription Services or Consulting Services directly from us or are paying us directly for any Third Party Offerings. In the event that you purchase Subscription Services or Consulting Services from an Approved Source, your payment obligations, therefore shall be subject to your terms and conditions with that Approved Source.
Fees and Payment. Unless otherwise expressly provided in a Service Order, you shall pay all Fees set forth therein within thirty (30) days of your receipt of our invoice. We will invoice you as follows: (i) for any Subscription Services or Third Party Offerings during the Subscription Term, annually in advance on, as applicable, (x) the execution of the Service Order or (y) expiry of the Activation Period; and (ii) for any Consulting Services, in full in advance. Any late payment shall be subject to the interest that accrues at a rate of the lower of one and one half percent (1.5%) per month or the highest rate permitted by law, plus costs of collection. Except as otherwise provided in a Service Order or this Agreement, all Fees must be paid in United States Dollars, are based on the Open Systems Offerings purchased and not actual consumption or performance and are non-cancellable and non-refundable.
The Fees do not include, and you shall be solely responsible for, any and all direct or indirect local, state, federal or foreign sales, use, GST, value-added withholding, or similar taxes or levies, other than taxes based on the income of Open Systems. Such taxes or levies shall not be considered a part of, a deduction from or an offset against Fees. If applicable, Customer shall provide evidence of its exemption from such taxes.
GENERAL LEGAL TERMS
- Proprietary Rights. Open Systems and its licensors retain all right, title and interest, including all related intellectual property rights, in and to the Open Systems Offerings, Documentation, its Confidential Information, any technology developed from any services (including Consulting Services) performed by us for you herein, and all derivative works, improvements or modifications thereto by whomever made. No rights are granted to you hereunder other than as expressly set forth herein. For clarity, Consulting Services performed by Open Systems will not include custom work product or other work for hire deliverables.
- Feedback. In the event that you or any of your Users provide us with any suggestions, ideas, improvements or other feedback with respect to the Open Systems Offerings (“Feedback”), you hereby grant us (and our successors and assigns) a non-exclusive, perpetual, irrevocable, sub-licensable, transferable, royalty-free, fully paid-up worldwide right and license to copy, reproduce, modify, create derivatives of, display, perform, sell, offer for sale, distribute and otherwise exploit such Feedback for any purpose, including without limitation, using and incorporating such Feedback into the Open Systems Offerings, without any obligation of accounting, or any payment of royalties or other consideration, to you. You acknowledge that Open Systems Offerings or Documentation incorporating Feedback shall be the sole and exclusive property of Open Systems.
Use of Data.
- Customer Data. Unless specifically set forth in the Documentation and/or Supplemental Terms of Service, the Open Systems Offerings are provided in an out-of-band architecture and no Customer network traffic (including all Customer Data and embedded Personal Data) is routed to the Open Systems hosted cloud component of the Subscription Services or otherwise directly accessible by Open Systems. You retain all right, title, and interest in and to all Customer Data. You represent and warrant that: (i) your use of the Open Systems Offerings and all Customer Data (including any Personal Data) is at all times compliant with your privacy policies and all applicable laws and regulations, including without limitation, all applicable Data Protection Laws, including the Swiss DPA and the GDPR; and (ii) you have sufficient rights in the Customer Data to grant the rights granted to us herein and that the Customer Data does not infringe or otherwise violate the rights of any third party. If you export Customer Data from one jurisdiction to another jurisdiction, you will ensure that you have all legal rights to do so, including, without limitation, in compliance with all applicable Data Protection Laws. You hereby grant to Open Systems a non-exclusive, worldwide, unrestricted and irrevocable right and license to use, copy, store, transmit and otherwise process the Customer Data (including Personal Data) to the extent necessary (i) to provide the Open Systems Offerings in accordance with this Agreement and (ii) to calculate benchmarks and perform other analyses that we may use internally for Open Systems Offerings improvements.
- Telemetry Data. To provide the basic Subscription Services functionality, your use of the Open Systems Offerings may generate, and the Devices may collect Telemetry Data. We may use Telemetry Data to provide the Subscription Services functionality and Subscription Support Services to you and for the general purpose of improving the Open Systems Offerings. Without limiting the generality of the foregoing, Open Systems may (a) compile statistical and other information related to the performance, operation and use of the Subscription Services, and (b) use data from the Subscription Services usage in aggregated form for security and operations management, to create statistical analyses, and for research and development purposes (clauses (a) and (b) are collectively referred to as “Service Analyses”). Open Systems may make Service Analyses publicly available; however, Service Analyses will not be presented in a form that could serve to identify you or any individual. Open Systems retains all intellectual property rights in Service Analyses. To the extent that Telemetry Data may include limited Personal Data required to deliver the Subscription Services, we shall manage such Telemetry Data in accordance with Section B(6) (Data Security) of this Agreement.
Confidentiality. Each Party agrees that all code, inventions, know-how, business, technical and financial information it obtains (“Receiving Party”) from the disclosing Party (“Disclosing Party”) constitute the confidential information 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 Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. This Agreement, the Documentation, the Open Systems Offerings or Third-Party Offerings (or any component thereof), fees and pricing information, and any performance information (e.g., benchmarking results) relating to the Open Systems Offerings or the Third Party Offerings shall be deemed Confidential Information of Open Systems. Except as expressly authorized herein, the Receiving Party will (a) hold in confidence (using reasonable methods of protection) the Confidential Information of Disclosing Party, (b) not use any such Confidential Information except in furtherance of this Agreement and (c) not disclose any Confidential Information of the Disclosing Party to any party, except its employees, subcontractors and agents on a need to know basis and subject to terms of confidentiality no less restrictive than the terms set forth herein. The Receiving Party’s nondisclosure obligation shall 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 generally available to the public 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. In the event that a Receiving Party is required to disclose Disclosing Party Confidential Information pursuant to a regulation, law or court order, it shall provide Disclosing Party with prior written notice thereof and reasonably assist Disclosing Party (as Disclosing Party’s cost and expense) in contesting such require disclosure. The Receiving Party acknowledges that disclosure or unauthorized use of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure or unauthorized use by the Receiving Party, the Disclosing Party shall be entitled to seek appropriate equitable relief (without the posting of a bond or similar instrument) in addition to whatever other remedies it might have at law.
- Mutual Warranties. Each Party represents and warrants to the other Party that it has the power and authority to execute, deliver, and perform its obligations under this Agreement.
- Open Systems Warranties. We warrant to you that the Subscription Services will operate in conformity in all material respects with the applicable Documentation and that any Consulting Services will be performed in a competent and workmanlike manner consistent with generally accepted industry standards. Your sole and exclusive remedy, and our sole liability, for any breach of this warranty, shall be for us to correct or re-perform the Subscription Services or Consulting Services, as applicable, at our expense. The limited warranty in this Section 12(b) shall not apply until you notify us in writing of a breach of this warranty. The limited warranty in this Section 12(b) shall not apply if the error or failure in performance was caused by misuse, unauthorized modifications, third-party hardware, software or services, Customer Data, or Force Majeure Event.
- Disclaimers of Warranty. EXCEPT FOR THE LIMITED WARRANTY IN THIS SECTION 12, WE PROVIDE THE OPEN SYSTEMS OFFERINGS ON AND “AS IS” AND “AS AVAILABLE” BASIS. NEITHER OPEN SYSTEMS NOR ITS SUPPLIERS MAKES OTHER WARRANTIES OF ANY KIND AND SPECIFICALLY DISCLAIMS ANY AND ALL EXPRESS, IMPLIED, STATUTORY AND OTHER WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NONINFRINGEMENT. WE DO NOT WARRANT THAT THE OPEN SYSTEMS OFFERINGS ARE ERROR-FREE OR THAT YOU WILL BE ABLE TO ACCESS OR USE OPEN SYSTEMS OFFERINGS WITHOUT PROBLEMS OR INTERRUPTIONS.
Limitations of Liability. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY (I) LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND WHETHER IN CONTRACT, TORT OR UNDER ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR (II) CUMULATIVE AMOUNTS IN EXCESS OF THE FEES PAID BY YOU FOR THE OPEN SYSTEMS OFFERINGS DURING THE TWELVE (12) MONTH PERIOD PRIOR TO THE FIRST EVENT OR OCCURRENCE GIVING RISE TO SUCH LIABILITY. EXCEPT AS SET FORTH BELOW, THE FOREGOING LIMITATIONS ON LIABILITY WILL NOT APPLY TO EITHER PARTY’S INDEMNITY OBLIGATIONS, EITHER PARTY’S BREACH OF SECTION 11 (CONFIDENTIALITY), OR YOUR BREACH OF YOUR PAYMENT OBLIGATIONS OR ANY LICENSE OR USE RESPONSIBILITIES OR RESTRICTIONS. FOR THE AVOIDANCE OF ANY DOUBT, UNDER NO CIRCUMSTANCES WILL WE HAVE ANY LIABILITY TO YOU FOR COST OF PROCUREMENT OF REPLACEMENT OF SUBSTITUTE PRODUCTS OR SERVICES.
- Open Systems Indemnity. We (“Indemnifying Party”) shall defend, indemnify and hold harmless you (“Indemnified Party”) from and against any and all third party claims asserted against an Indemnified Party (and all resulting, to the extent payable to unaffiliated third parties, damages, losses, liabilities, penalties, costs and expenses, including reasonable attorneys’ fees and costs) (“Losses”) arising out of the alleged infringement or misappropriation of a copyright, trade secret, trademark or patent by the Open Systems Offerings. If any claim which we are obligated to defend has occurred, or in our determination is likely to occur, we may, in our sole discretion and at our option and expense: (a) obtain for you the right to use the allegedly infringing item; (b) substitute a non-infringing replacement for such item; or (c) if in our opinion neither item (a) nor (b) are reasonably available, terminate the Agreement and refund to you the Fees paid by you in an amount prorated for the portion of the Subscription Term for the Open Systems Offerings which was paid by you but not rendered by us. Our indemnification obligation herein shall not apply if such claim arises out of: (1) the use of the Open Systems Offerings in combination with any cloud environment hosted by a third party or any software, hardware, network or system not supplied by us where the alleged infringement is caused by such combination; (2) any modification or alteration of the Open Systems Offerings (other than by us); (3) your continued allegedly infringing activity after being informed of a modification that would avoid the alleged infringement; (4) our compliance with your designs, specifications or instructions; or (5) the use of the Open Systems Offerings other than in accordance with the terms and conditions of this Agreement. THIS SECTION 14(a) SETS FORTH OUR SOLE LIABILITY, AND YOUR SOLE AND EXCLUSIVE REMEDY, WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT or misappropriation.
- Customer Indemnity. You (“Indemnifying Party”) shall indemnify, defend and hold harmless us (“Indemnified Party”) from and against any and all Losses arising out of (i) any Customer Data (including, without limitation, the violation of any laws, regulations or privacy rights), (ii) your use of the Open Systems Offerings or any Third Party Offerings, or (iii) any bodily injury or death to any person, or any property damage to tangible property, related to or arising from your business or operations.
- Procedure. The Indemnifying Party’s indemnification obligation is subject to the Indemnifying Party receiving (i) prompt written notice from the Indemnified Party of such claim (but in any event, notice insufficient time for the Indemnifying Party to respond without prejudice); (ii) the exclusive right to control and direct the investigation, defense, or settlement of such claim; and (iii) all reasonable necessary cooperation of the Indemnified Party at Indemnifying Party’s expense.
Term and Termination; Suspension of Open Systems Offerings.
- Term. This Agreement begins on the Effective Date and continues until terminated in accordance with this Section 15. Each Service Order will have an initial Subscription Service Term set forth therein. Upon expiry of such initial Subscription Service Term, the Service Order will automatically renew for an additional period of one (1) year, unless either Party provides written notice to the other Party of non-renewal at least sixty (60) days prior to the then-current Subscription Service Term. If the Service Order expressly provides that such Service Order is for a Proof of Concept (defined in Section 20(a) below), the automatic renewal provision in this Section 15(a) shall not apply.
- Termination. Either Party may terminate this Agreement as follows: (a) upon thirty (30) days written notice if the other Party breaches any material provision of this Agreement and does not cure such breach before the end of such cure period; (b) effective immediately and without notice if the other Party ceases to do business or otherwise terminates its operations, except as a result of a permitted assignment hereunder; or (c) if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditor’s arrangement or comparable proceedings if such proceeding is instituted against that Party (and not dismissed with sixty (60) days thereafter). Any termination of this Agreement will automatically terminate all Service Orders.
- Effect of Termination. Upon early termination or expiration of this Agreement, (i) your access to, and use of, the Open Systems Offerings or any Third Party Offerings for which you pay us directly shall immediately cease, (ii) you shall reasonably cooperate with us for the return of the Devices or destruction thereof if instructed by us (at our cost and expense, unless we terminate this Agreement pursuant to Section 15(b) in which event the return or destruction of the Devices will be at your cost and expense), and (iii) upon Disclosing Party’s request, the Receiving Party shall destroy or return all Confidential Information in its possession. Upon any early termination (except for termination for our breach) or expiration of the Agreement, all payment obligations with respect to unpaid Fees for Open Systems Offerings or Third-Party Offerings (including those payment obligations arising in the then-current Subscription Term) are irrevocable, and you are to pay such amounts promptly to us on termination or expiration of the Agreement, and you will not be entitled to any refund of any prepaid amounts. In the event of your termination for Open Systems’ breach, you will be entitled to a refund of any unearned prepaid Fees prorated to the end of the payment period for such Fees. The following Sections shall survive any expiration of termination of this Agreement: Sections 1(c), 1(d), 6, C, 9, 10, 11, 12(c), 13, 14, 15(c), 17, 18, 19 and 20.
- Suspension. If your account is overdue or if we in good faith believe that you are engaging in unauthorized conduct in your use of the Open Systems Offerings or any Third Party Offerings, we reserve the right to, and in addition to any of our other rights or remedies, suspend your access thereto without liability to you until, as applicable, such amounts are paid in full or until you stop engaging in such unauthorized conduct.
Press Release and Publicity. Neither Party may issue a press release in connection with this Agreement or the transaction contemplated herein without the prior written consent of the other Party; provided, however, we may use your name and logo on our website and in our promotional materials as part of a general list of customers.
Assignment. Neither Party may assign this Agreement or any of its rights, by operation of law or otherwise, or delegate any of its duties hereunder, in whole or in part, without the other Party’s prior written consent; provided, however, we may assign this Agreement without your consent, in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of Open Systems assets. Any attempt by a Party to assign its rights or obligations under this Agreement in breach of the previous sentence shall be void and of no effect.
Export. Pursuant to all relevant export laws and regulations, including but not limited to the U.S. Export Administration Regulations (collectively, “Export Controls”), you expressly agree that you shall not, and shall cause your representatives to agree not to, export, directly or indirectly, re-export, divert, or transfer the Open Systems Offerings, Documentation or Open Systems Confidential Information to any destination, company or person restricted or prohibited by Export Controls.
Government Users. If you are a branch or agency of the United States Government, the Open Systems Services, Documentation and any other services provided by us hereunder, are comprised of “commercial computer software” and “commercial computer software documentation” as such terms are used in 49 C.F.R. 12.212, and are provided to you either (i) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 212 or (ii) for acquisition by or on behalf of units of the Department of Defense, consistent with policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3.
- Proof of Concept. If we permit you to access and use Open Systems Offerings or Third-Party Offerings for evaluation purposes for no fees or charges (“Proof of Concept”), you may be presented with additional terms and conditions prior to such use, and such additional terms and conditions are hereby incorporated into this Agreement by reference and are legally binding upon the Parties. NOTWITHSTANDING ANY CONTRARY PROVISION IN THIS AGREEMENT, ANY PROOF OF CONCEPT WILL BE MADE AVAILABLE BY US TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, (I) WITHOUT ANY REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY (TO THE FULLEST EXTENT PERMITTED BY LAW) AND (II) WITHOUT ANY OBLIGATION OF US TO PROVIDE TECHNICAL SUPPORT OR ANY INDEMNITY FOR YOUR ACCESS TO, AND USE OF, THE SERVICES DURING THE PROOF OF CONCEPT.
- Third-Party Products and Services. You may choose to obtain Third-Party Offerings for use with the Open Systems Offerings, including certain Third Party Offerings that may be offered by us to you for an additional fee as set forth on a Service Order. We assume no responsibility for, and specifically disclaim any liability or obligation with respect to, any Third Party Offerings; and any exchange of data or other interaction between you and such third party is solely between you and such third party. You acknowledge and agree that it is your responsibility to ensure that your use of such Third Party Offerings do not cause you to breach in any way your obligations to us with respect to the Open Systems Offerings and that your use of the Open Systems Offerings do not in any way cause you to breach your obligations to any third party.
- Audit. Upon at least thirty (30) days written notice and during the other Party’s normal business hours, each Party shall have the right to audit other Party’s books of account, business records, and systems as necessary to verify the accuracy of the Fees paid pursuant to this Agreement. You shall promptly pay us the difference (plus interest) if such audit reveals an underpayment and we shall promptly pay you the difference (plus interest) if such audit reveals an overpayment; provided, however, under no circumstances will actual consumption or use of the Subscription Services by you that is less than what you ordered pursuant to a Service Order be the basis for a claim by you of overpayment. If such audit reveals an underpayment or overpayment of more than five percent (5%), the non-auditing Party shall also promptly reimburse the auditing Party for the reasonable costs and expenses of such audit.
- Independent Contractors. The Parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise, or agency created hereby between the Parties. Neither Party will have the power to bind the other or incur obligations on the other Party’s behalf without the other Party’s prior written consent.
- Force Majeure. Neither Party shall be liable to the other Party for any delay or failure to perform any obligation under this Agreement (except for a failure to pay fees) if the delay or failure is due to unforeseen events which occur which are beyond the reasonable control of such Party (“Force Majeure Event”), 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. Any Party claiming force majeure hereunder shall provide prompt notice thereof to the other Party and make commercially reasonable efforts to overcome the effect of such Force Majeure Event. If such Force Majeure Event prevents the Party from substantially performing its obligations hereunder for a period of thirty (30) days or more, either Party may terminate this Agreement on five (5) days written notice.
- Severability. If any provision of this Agreement shall be adjudged by any court of competent jurisdiction to be unenforceable or invalid, that provision shall be limited to the minimum extent necessary so that this Agreement shall otherwise remain in effect.
- Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the United States of America and the State of California, excluding its conflict of laws rules. The United Nations Convention on the International Sale of Goods and the Uniform Computer Information Transactions Act are specifically excluded from application to this Agreement. The Parties hereby submit to the exclusive jurisdiction of and waive any venue jurisdiction or venue objections against, the state and Federal courts located in San Francisco County, California.
- Notice. Any notice or communication required or permitted under this Agreement shall be in writing to the Parties at the addresses set forth on the Service Order or at such other address as may be given in writing by either Party to the other and shall be deemed to have been received by the addressee (i) if given by hand, immediately upon receipt; (ii) if given by overnight courier service, the first business day following dispatch or (iii) if given by registered or certified mail, postage prepaid and return receipt requested, the second business day after such notice is deposited in the mail.
- Modifications or Waivers. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative of the Party claimed to have waived. Open Systems reserves the right to periodically update this Customer Terms of Service (including any applicable Supplemental Terms of Service at any time by publishing updated terms of service on our website. When we do this, we will provide you a notice via email or through an in-application notice. Your continued use of applicable Open Systems Offerings following such notice may be relied on by us as your acceptance of the updated Customer Terms of Service (or Supplemental Terms of Service, as applicable).
- Entire Agreement. This Agreement (including all Supplemental Terms of Service) and each Service Order are the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements and communications relating to the subject matter of this Agreement. Purchase orders (and similar documents) issued by you are for administrative purposes only (e.g. setting forth products and services ordered and associated fees) and any additional or different terms or conditions contained in any such order shall not apply (even if the order is accepted or performed on by us). In the event of a conflict between any Service Order and this Agreement or a Supplemental Terms of Service, the Service Order (as applicable) will control. Furthermore, in the event of a conflict between any Supplemental Terms of Service and this Agreement, the Supplemental Terms of Service will control.
Open Systems reserves the right not to be responsible for the relevance, correctness, completeness or quality of the information provided.
Liability claims regarding damage caused by the use of any information provided, including any kind of information which is incomplete or incorrect, will therefore be rejected.
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