This End User License Agreement (“Agreement”) forms a legal agreement between you (including, if applicable, any legal entity which you represent or act for) (“End User”, “You”, or “Your”) and OverOps, Inc. (“OverOps,” “We,” “Our” or “Us”) and sets forth the terms and conditions governing Your access to and use of the Service (as defined below). By clicking “I Accept,” entering into a Service Order, or by using the Service, You agree that you have read, understood, and agree to be bound by this Agreement, as may be amended by OverOps from time to time. It is Your responsibility to regularly check if there have been changes to this Agreement and to review said changes. This Agreement shall apply to any order form, sales quotation, proposal, purchase order, or other ordering document that references this Agreement (each a “Service Order”).
1. SOFTWARE LICENSE.
1.1 License Grant. Subject to the terms and conditions of this Agreement, OverOps hereby grants to End User, during the License Term (as defined below), a non-exclusive, non-transferable, non-sublicensable right and license to use the software-as-a-service and/or on-premises version of OverOps’s software product, including one controller, or more than one controller (the “Software”) for internal business purposes only for the quantity of units purchased. OverOps For purposes hereof, the “License Term” begins on the date OverOps enables and/or delivers the Software to End User and extends for the period specified in the applicable Order Form or until such time as all Subscription Licenses hereunder have expired (unless earlier terminated in accordance with this Agreement). For the avoidance of doubt, End User’s affiliates (and employees thereof) shall not use the Software without OverOps’s prior written consent. This Agreement supersedes any other agreement (including any click-through or electronic agreements within the Software) between OverOps and End User with respect to the Software. Any references in the Order Form to an “Agreement” or “EULA” or other similar term shall be deemed to refer to this Agreement.
1.2 Restrictions on Use. Except as otherwise expressly provided in this Agreement, End User shall not (and shall not permit any third party to): (a) sublicense, sell, resell, transfer, assign, distribute, share, lease, rent, make any external commercial use of, outsource, use on a timeshare or service bureau, or use in an application service provider or managed service provider environment, or otherwise generate income from the Software; (b) copy the Software onto any public or distributed network, except for an internal and secure cloud computing environment; (c) cause the decompiling, disassembly, or reverse engineering of any portion of the Software, or attempt to discover any source code or other operational mechanisms of the Software (except where such restriction is expressly prohibited by law without the possibility of waiver, and then only upon prior written notice to OverOps); (d) modify, adapt, translate or create derivative works based on all or any part of the Software; (e) use any Third Party Software (as defined below) other than with the Software as provided; (f) modify any proprietary rights notices that appear in the Software or components thereof; (g) publish the results of any benchmarking tests run on any Third Party Software; (h) use any Software in violation of any applicable laws and regulations (including any export laws, restrictions, national security controls and regulations) or outside of the license scope set forth in Section 1.1; (i) use the Software in support of any nuclear proliferation, chemical weapon, biological weapon or missile proliferation activity; or (j) configure the Software to collect any protected health information or payment/financial information. End User shall not export or re-export, directly or indirectly, any Software or technical data or any copy, portions or direct product thereof (i) in violation of any applicable laws and regulations, (ii) to any country for which the United States or any other government, or any agency thereof, at the time of export requires an export license or other governmental approval, including Cuba, Libya, North Korea, Iran, Iraq, or Rwanda or any other Group D:1 or E:2 country (or to a national or resident thereof) specified in the then current Supplement No. 1 to part 740 of the U.S. Export Administration Regulations (or any successor supplement or regulations, without first obtaining such license or approval) or (ii) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Denial Orders. End User shall, at its own expense, obtain all necessary customs, import, or other governmental authorizations and approvals.
1.3 Evaluation Use. If End User accessed the Software pursuant to a no-fee or beta evaluation (“Evaluation Use”), then the License Term is for the period enabled by the license key for the Software provided by OverOps. OverOps shall have the right to downgrade, limit or otherwise modify the Software provided for Evaluation Use at any time without notice, and no warranty, indemnity, Maintenance or Support obligations of OverOps will apply to Evaluation Use. End User may use the number and type of licenses indicated by OverOps in writing prior to End User downloading or accessing the Software, which will be enabled by End User’s specific license key. OverOps has the right to immediately revoke and terminate any Evaluation Use at any time. End User represents and warrants that: (i) End User has not previously evaluated the Software, and (ii) End User will not attempt to, by any means, evaluate the Software again without payment. End User agrees that breach of this provision or this Agreement may subject End User to monetary penalties, including payment of all applicable fees as though the Software were licensed for payment.
1.4 Unauthorized Use. End User shall notify OverOps promptly of any unauthorized use of any password or account or any other known or suspected breach of security or misuse of the Software. End User is responsible for use of the Software by any and all employees or other users that it allows to access the Software.
1.5 Maintenance and Support. “Maintenance” means the provision of error corrections and bug fixes for the Software, as well as updates made generally commercially available by OverOps in its sole discretion. Subject to End User’s payment of the fees, OverOps will provide Maintenance for the Software.
2.1 Pricing. End User will be invoiced for those amounts and at those prices set forth on the website (an “Invoice”), provided, however, that, for Evaluation Use, End User shall not be billed unless otherwise specified by OverOps in writing prior to End User downloading or accessing (as applicable) the Software. Fees do not include any customization of the Software (nor support for any such customizations, unless otherwise agreed in writing). If End User’s usage of the Software is in excess of those amounts purchased, End User will be billed for those overages at a pro-rated amount for the remainder of the applicable License Term, based on OverOps’s then-current standard pricing. If OverOps believes in good faith that End User’s usage of the Software exceeds the amount purchased by End User, End User agrees to allow OverOps to audit End User’s use of the Software (not more frequently than twice per calendar year), upon at least twenty-four (24) hours’ notice, to determine the actual Software use, using a commercially reasonable auditing procedure.
2.2 Payments. End User shall pay Invoices within thirty (30) days of the invoice date (the “Invoice Due Date”). If End User reasonably disputes any Invoice, (i) End User shall provide OverOps with written notice of such dispute, including the grounds therefore (a “Dispute Notice”), within thirty (30) days following receipt of such Invoice, (ii) End User and OverOps shall, for a period of fifteen (15) days following OverOps’s receipt of such Dispute Notice, negotiate in good faith to resolve the dispute and (iii) if such dispute remains unresolved at the end of such period, the parties shall retain all of their respective rights under this Agreement (including, without limitation, any action for non-payment of the fees set forth herein). All payment obligations are non-cancelable and all amounts paid are non-refundable, except (a) for amounts paid in error that are not actually due under this Agreement, and (b) as set forth in Sections 6.1 and 7.1. The fees paid by End User are exclusive of all taxes, levies, or duties imposed by taxing authorities, if any, and End User shall be responsible for payment of all such taxes, levies, or duties, excluding taxes based on OverOps’s income. End User represents and warrants that the billing and contact information provided to OverOps is complete and accurate, and OverOps shall have no responsibility for any Invoices that are not received due to inaccurate or missing information provided by End User. End User shall pay interest on all payments not received by the Invoice Due Date at a rate of one percent (1%) per month or the maximum amount allowed by law, whichever is lesser. All amounts due under this Agreement shall be paid by End User in full without any set-off, counterclaim, deduction or withholding (other than any deduction or withholding of tax as required by law). If requested by OverOps, End User will obtain and furnish to OverOps tax receipts or other certificates issued by the competent taxation office showing the payments of the withholding tax within a reasonable time after payment. Following written notice, OverOps shall be entitled to suspend End User’s access to the Software if payments are not received within thirty (30) days of the Invoice Due Date. Notwithstanding anything herein to the contrary, if End User makes its payments pursuant to this Agreement to a Partner, then the payment terms agreed by End User and such Partner shall govern to the extent anything in this Section 2 conflicts with such Partner payment terms.
3.1 agents are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 3; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and, to the extent within its control, permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 3 will not apply to information that the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available 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
3.2 Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of the Disclosing Party’s Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to seek appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
4. PROPRIETARY RIGHTS.
4.1 OverOps and its suppliers own and shall retain all proprietary rights, including all copyright, patent, trade secret, trademark and all other intellectual property rights, in and to the Software and the results of any Training and Enablement Services. End User acknowledges that the rights granted under this Agreement do not provide End User with title to or ownership of the Software. Certain “free” or “open source” based software (the “FOSS Software”) and third party software (the “Third Party Software”) is shipped with the Software but is not considered part of the Software hereunder. With respect to Third Party Software included with the Software, such Third Party Software suppliers are third party beneficiaries of this Agreement. End User’s use of such FOSS Software is subject to the terms of the licenses set forth on such webpage. The Software and Third Party Software may only be used by End User as prescribed by the OverOps documentation located at https://support.overops.com/hc/en-us (as it may be updated from time to time, the “Documentation”).
5. TERM AND TERMINATION.
5.1 The term of this Agreement begins on the Effective Date and will remain in effect until all Subscription Licenses expire or until this Agreement is otherwise terminated in accordance with the terms hereof, whichever occurs first (the “Term”). Each Subscription License shall automatically renew for additional License Terms of the same duration and at a price equal to the then-current list price; excluding any items sold at no cost and/or other discounts containing the words “one-time”, and unless either party requests termination by written notice at least thirty (30) days prior to the end of the then-current term (such notice must be provided by End User to orders@OverOps.com). Any such renewal terms shall be deemed part of the License Term or Maintenance and Support Term, as applicable. If either party commits a material breach of this Agreement, and such breach has not been cured within thirty (30) days after receipt of written notice thereof, the non-breaching party may terminate this Agreement, except that OverOps may immediately terminate this Agreement and/or End User’s license to the Software upon End User’s breach of Section 1.2. Either party may also terminate this Agreement upon written notice if the other party suspends payment of its debts or experiences any other insolvency or bankruptcy-type event. Upon expiration or termination of this Agreement for any reason, (i) with respect to Subscription Licenses, all rights granted to End User shall terminate and End User shall destroy any copies of the Software and Documentation within End User’s possession and control and (ii) each Receiving Party will return or destroy, at the Disclosing Party’s option, the Disclosing Party’s Confidential Information in the Receiving Party’s possession or control. All fees that have accrued as of such expiration or termination, and Sections 1.2, 1.3, 1.4, 2, 3, 4, 5, 6.2 and 7 through 12, will survive any expiration or termination hereof.
6.1 Limited Warranty. OverOps warrants that (a) with respect to software-as-a-service Software licenses, during the License Term, or (b) with respect to on-premises Software licenses, during the first thirty (30) days following the date the Software is purchased, the Software will, in all material respects, conform to the functionality described in the then-current Documentation for the applicable Software version. End User must notify OverOps in writing of any warranty breaches within such warranty period. OverOps’s sole and exclusive obligation, and End User’s sole and exclusive remedy, for a breach of this warranty shall be that OverOps shall be required to use commercially reasonable efforts to repair or replace the Software to conform in all material respects to the Documentation, and if OverOps is unable to materially restore such functionality within thirty (30) days from the date of written notice of such breach, End User shall be entitled to terminate the license to the affected Software upon written notice and OverOps shall promptly provide a pro-rata refund of the Software license fees that have been paid in advance for the remainder of the License Term for the applicable Software (beginning on the date of termination).
6.2 Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 6, ALL SOFTWARE, DOCUMENTATION, MAINTENANCE AND SUPPORT AND TRAINING AND ENABLEMENT SERVICES ARE PROVIDED “AS IS” AND OVEROPS AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE WITH RESPECT THERETO, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, OR THE CONTINUOUS, UNINTERRUPTED, ERROR-FREE, VIRUS-FREE, OR SECURE ACCESS TO OR OPERATION OF THE SOFTWARE. OVEROPS EXPRESSLY DISCLAIMS ANY WARRANTY AS TO THE ACCURACY OR COMPLETENESS OF ANY INFORMATION OR DATA ACCESSED OR USED IN CONNECTION WITH THE SOFTWARE, DOCUMENTATION, OR MAINTENANCE AND SUPPORT,. OverOps is not responsible for any delays, delivery failures, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the Internet, and End User acknowledges that the Software and Documentation may be subject to limitations, delays and other problems inherent in the use of such communications facilities. The Software is not fault-tolerant and is not designed or intended for use in hazardous environments, including without limitation, in the operation of aircraft or other modes of human mass transportation, nuclear or chemical facilities, life support systems, implantable medical equipment, motor vehicles or weaponry systems, or any other application in which failure of the Software could lead to death or serious bodily injury of a person, or to severe physical or environmental damage (each, a “High Risk Use”). OverOps expressly disclaims any express or implied warranty or representation of fitness for High Risk Use.
7.1 By OverOps. OverOps agrees at its expense to defend End User against (or, at OverOps’s option, settle), any third party claim to the extent such claim alleges that the Software infringes or misappropriates any patent, copyright, trademark or trade secret of a third party, and OverOps shall pay all costs and damages finally awarded against End User by a court of competent jurisdiction as a result of any such claim. In the event that the use of the Software is, or in OverOps’s sole opinion is likely to become, subject to such a claim, OverOps, at its option and expense, may (a) replace the applicable Software with functionally equivalent non-infringing technology, (b) obtain a license for End User’s continued use of the applicable Software, or (c) terminate the license and provide a pro-rata refund of the Software license fees that have been paid in advance for the remainder of the License Term for the applicable Software (beginning on the date of termination). The foregoing indemnification obligation of OverOps will not apply: (1) if the Software is modified by End User or its agent; (2) if the Software is combined with other non-OverOps products, applications, or processes, but solely to the extent the alleged infringement is caused by such combination; or (3) to any unauthorized use of the Software. The foregoing shall be End User’s sole remedy with respect to any claim of infringement of third party intellectual property rights.
7.2 By End User. End User agrees to defend, at its expense, OverOps and its affiliates, its suppliers and its resellers against any third party claim to the extent such claim arises from or is made in connection with End User’s breach of Section 1 or End User’s negligence or willful misconduct, and End User shall pay all costs and damages finally awarded against OverOps by a court of competent jurisdiction as a result of any such claim.
8. LIMITATION OF LIABILITY.
8.1 EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON USE), IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES FOR LOSS OF REVENUES OR PROFITS, LOSS OF USE, BUSINESS INTERRUPTION, OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT OR TORT, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 EXCEPT FOR LIABILITY ARISING OUT OF END USER’S BREACH OF SECTION 1.2 (RESTRICTIONS ON USE) OR EACH PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, NEITHER PARTY’S LIABILITY FOR ANY DAMAGES (WHETHER FOR BREACH OF CONTRACT, MISREPRESENTATIONS, NEGLIGENCE, STRICT LIABILITY, OTHER TORTS OR OTHERWISE) SHALL EXCEED AN AMOUNT EQUAL TO THE TOTAL FEES PAID TO OVEROPS DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE CLAIM GIVING RISE TO SUCH DAMAGES. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
9. FORCE MAJEURE.
9.1 Except for payment obligations, neither party hereto will be liable for defaults or delays due to acts of God, or the public enemy, acts or demands of any government or governmental agency, fires, earthquakes, floods, accidents, or other unforeseeable causes beyond its reasonable control and not due to its fault or negligence.
10. DATA COLLECTION.
10.1 End User acknowledges that OverOps’s application server and machine software agents (the “Agents”) collect metrics that relate to the performance, health and resource of an application, its components (transactions, code libraries) and related infrastructure (nodes, tiers) that service those components. In addition, OverOps may collect metrics on End Users’ activities, such as web pages visited, length of visit, and which features of the Software an End User uses. If End User provides OverOps with any personally identifiable information (“personal data”), End User represents and warrants that such information is processed in accordance with the provisions of all applicable data protection legislation and that End User has all right and consents necessary to provide such personal data to OverOps. End User will indemnify OverOps for reasonable costs and other amounts that OverOps may incur relating to any breach of this Section
11. US GOVERNMENT MATTERS.
11.1 As defined in FAR section 2.101, the Software and Documentation are “commercial items” and according to DFAR section 252.227 7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
12.1 This Agreement shall be governed by and construed under the laws of the State of California, U.S.A. The parties consent to the exclusive jurisdiction and venue of the courts located in and serving San Francisco, California. Failure by either Party to exercise any of its rights under, or to enforce any provision of, this Agreement will not be deemed a waiver or forfeiture of such rights or ability to enforce such provision. If any provision of this Agreement is held by a court of competent jurisdiction to be illegal, invalid or unenforceable, such provision will be amended to achieve as nearly as possible the same economic effect of the original provision and the remainder of this Agreement will remain in full force and effect. This Agreement and its exhibits, together with any Order Form(s) and any statements of work incorporating this Agreement, if applicable, represent the entire agreement between the parties and supersede any previous or contemporaneous oral or written agreements or communications regarding the subject matter of this Agreement. The person signing or otherwise accepting this Agreement for End User represents that s/he is duly authorized by all necessary and appropriate corporate action to enter this Agreement on behalf of End User. Any modification to this Agreement must be in writing and signed by a duly authorized agent of both parties. The Uniform Computer Information Transactions Act (UCITA) does not apply to this Agreement. This Agreement shall control over additional or different terms of any purchase order, confirmation, invoice or similar document (other than an OverOps Order Form), even if accepted in writing by both parties, and waivers and amendments to this Agreement shall be effective only if made by non-pre-printed agreements clearly understood by both parties to be an amendment or waiver to this Agreement. For purposes of this Agreement, “including” means “including without limitation.” The rights and remedies of the parties hereunder will be deemed cumulative and not exclusive of any other right or remedy conferred by this Agreement or by law or equity. No joint venture, partnership, employment, or agency relationship exists between the parties as a result of this Agreement or use of the Software. OverOps reserves the right to perform its obligations from locations and/or through use of affiliates and subcontractors, worldwide, provided that OverOps will be responsible for such parties. End User may not assign this Agreement without the prior written approval of OverOps and any purported assignment in violation of this section shall be void; OverOps may assign, transfer or subcontract this Agreement in whole or in part. Upon any assignment of this Agreement by End User that is approved by OverOps, any licenses that contain an “unlimited” feature will, with respect to End User or the successor entity, as applicable, be capped at the number of authorized Software units in use immediately prior to such assignment. End User agrees that OverOps may refer to End User by its trade name and logo, and may briefly describe End User’s business, in OverOps’s marketing materials and website. OverOps may give notice to End User by electronic mail to End User’s email address on record in End User’s account information, or by written communication sent by first class mail or pre-paid post to End User’s address on record in End User’s account information. End User may give notice to OverOps at any time by any letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to OverOps at the following address or such other address as may be notified to End User from time to time: OverOps, Inc., 325 Ninth Street, San Francisco, CA 94103, Attn: Legal Department. Notice under this Agreement shall be deemed given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by email; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested