IMPORTANT NOTICE: THESE TERMS AND CONDITIONS CONTAIN A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE OPSCOMPASS PLATFORM. PLEASE READ CAREFULLY.
These OpsCompass Terms of Service (“Terms”) govern access to and use of the OpsCompass, Inc. (“OCI”, “we,” or “us”) web sites (www.opscompass.com, the “Site”) and services, including the OpsCompass cloud governance Platform (collectively, the “Platform”) by site visitors (“Site Visitors”) and by individuals or entities who purchase services and their Authorized Users (collectively, “Customers”). By using the Platform, you as a Site Visitor or Customer accept these Terms (whether on behalf of yourself or a legal entity you represent). An “Authorized User” of a Customer is each an individual natural person, whether an employee, business partner, contractor, or agent of a Customer who is registered or permitted by Customer to use the Platform subject to these Terms and up to any maximum number of users or uses specified at the time of purchase. Customers and Site Visitors may be referred to in these Terms as “you” and “your” as applicable.
If you are a Customer and you or your organization are bound by a Master Services Agreement (however so titled) with OCI (“Corporate Terms”), then these Terms will apply, if at all, only to use of the Platform to the extent such use is not already governed by such a Master Services Agreement. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT OR YOUR OR LICENSEE’S ACCEPTANCE OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, NO LICENSE IS GRANTED (WHETHER EXPRESSLY, BY IMPLICATION, OR OTHERWISE) UNDER THIS AGREEMENT, AND THIS AGREEMENT EXPRESSLY EXCLUDES ANY RIGHT, CONCERNING ANY SOFTWARE THAT LICENSEE DID NOT ACQUIRE LAWFULLY OR THAT IS NOT A LEGITIMATE, AUTHORIZED COPY OF LICENSOR’S SOFTWARE.
BY ACCESSING, USING, OR DOWNLOADING ANY MATERIALS FROM THE PLATFORM, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU ARE NOT AUTHORIZED AND MUST CEASE USING THE SITE IMMEDIATELY.
UPDATES AND COMMUNICATIONS
Section 1.01 Updates and Revisions. We may revise these Terms or any additional terms and conditions that are relevant to the Platform from time to time to reflect changes in the law or to the Platform. We will post the revised terms on the Site with a “last updated” date. PLEASE REVIEW THE SITE ON A REGULAR BASIS TO OBTAIN TIMELY NOTICE OF ANY REVISIONS. IF YOU CONTINUE TO USE THE PLATFORM AFTER THE REVISIONS TAKE EFFECT, YOU AGREE TO BE BOUND BY THE REVISED TERMS. You agree that we shall not be liable to you or to any third party for any modification of the Terms.
Section 1.02 Communications. You agree to receive all communications, agreements, and notices that we provide in connection with the Platform (“Communications”), including, but not limited to, Communications related to our delivery of the Platform and your purchase of or subscription to the Platform, via electronic means, including by e-mail, text, in-product notifications, or by posting them on the Site or through any Platform. You agree that all Communications we provide to you electronically satisfy any legal requirement that such Communications be in writing or be delivered in a particular manner and you agree to keep your account contact information current.
Section 1.03 Eligibility to Use. You represent and warrant that you are: (a) of legal age (18 years of age or older or otherwise of legal age in your resident jurisdiction) and competent to agree to these Terms; and (b) you (or your Authorized Users, as applicable) are not and will not when using the Site be located in, under the control of, or a national or resident of a U.S. embargoed country or territory and are not a prohibited end user under Export Control Laws (as defined in Section 12.3). You acknowledge that you are not permitted to use the Platform if you cannot make these representations. If OCI has previously prohibited you from accessing the Platform, you are not permitted to access the Platform. If you are agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
Section 1.04 Limited License. Upon your acceptance of these Terms, we grant you a limited, non-exclusive and non-transferable license to access and use the Platform for your internal business purposes and only as expressly permitted in these Terms and any applicable Corporate Terms. You shall not use or permit use of the Platform for any illegal purpose or in any manner inconsistent with the provisions of these Terms. If you are or become a direct competitor of OCI, you may not access or use the Platform without OCI’s explicit, advance, written consent, and then only for the purposes authorized in writing.
Section 2.01 Intellectual Property. The Platform contains materials that are proprietary and are protected by copyright laws, international treaty provisions, trademarks, service marks, and other intellectual property laws and treaties.
Section 2.02 The Platform is also protected as a collective work or compilation under copyright and other laws and treaties. You agree to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained on the Platform. You acknowledge that the Platform contains original works that have been developed, compiled, prepared, revised, selected, and arranged by OCI and others through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort, and money and which constitute valuable intellectual property of OCI and such others. All present and future rights in and to trade secrets, patents, designs, copyrights, trademarks, database rights, service marks, know-how, and other intellectual property or other proprietary rights of any type, documentation, any improvements, design contributions, or derivative works thereto, and any knowledge or process related thereto, including rights in and to all applications and registrations relating to the Site, shall, as between you and OCI, at all times be and remain the sole and exclusive property of OCI.
Section 2.03 The trademarks, logos, taglines, and service marks displayed on the Platform (collectively, the “Trademarks”) are registered and unregistered Trademarks of OCI and others. The Trademarks may not generally be used in any advertising or publicity, or otherwise to indicate OCI’s sponsorship of or affiliation with any product, service, event, or organization without OCI’s prior express written permission. OCI acknowledges the Trademarks of other organizations for their respective products or services mentioned on the Site. Any rights not expressly granted in these Terms are reserved by OCI.
Section 2.04 Software Use Restrictions. Software available for downloading through the Site or third-party websites or applications (the “Software”) is the protected work of OCI and third-party providers. Use of the Software is governed by these Terms. Unauthorized reproduction or distribution of the Software is expressly prohibited by law and may result in civil and criminal penalties. Violators may be prosecuted.
USE OF THE PLATFORM
Section 3.01 Right to Use Platform. Subject to these Terms, OCI will provide the Platform to Customers in accordance with the Corporate Terms, and OCI grants to each Customer a limited non-exclusive, non-transferrable right and license during the Term, solely for its internal business purposes, to: (a) use the Platform; (b) implement, configure, and, through its Account Administrator(s), permit its Authorized Users to access and use the Platform up to any applicable limits or maximums; and (c) access and use the Documentation.
Section 3.02 Authorized Users. Authorized Users of Customer must be identified by a unique email address and user name and two or more natural persons may not use the Platform as the same Authorized User. If the Authorized User is not an employee of Customer, use of the Platform will be allowed only if the user is under confidentiality and other obligations with Customer at least as restrictive as those in these Terms, and is accessing or using the Platform solely to support Customer’s internal business purposes.
Section 3.03 Account Administrator. Customer may assign and expressly authorize an Authorized User(s) as its agent to manage Customer’s account, and management of Customer’s account includes, without limitation, configuring administration settings, assigning access and use authorization, requesting different or additional services, providing usage and performance records, managing templates, executing approved campaigns and events, assisting in third-party product integrations, and accepting notices, disclosures, and terms and conditions (“Account Administrator”). Customer may appoint an employee, agent or a third-party business partner or contractor to act as its Account Administrator(s) and may change its designation at any time through its account.
RESTRICTIONS ON USE OF THE PLATFORM
Section 4.01 By using the Platform you specifically agree not to engage in any activity or transmit any information that, in our sole discretion:
(a) Is illegal, or violates any federal, state, or local law or regulation;
(b) Advocates illegal activity or discusses illegal activities with the intent to commit them;
(c) Violates any third-party right, including, but not limited to, right of privacy, right of publicity, copyright, trademark, patent, trade secret, or any other intellectual property or proprietary rights;
(d) Is harmful, threatening, abusive, harassing, tortious, indecent, defamatory, sexually explicit or pornographic, discriminatory, vulgar, profane, obscene, libelous, hate speech, violent or inciting violence, inflammatory, or otherwise objectionable;
(e) Interferes with any other party’s use and enjoyment of the Platform;
(f) Attempts to impersonate another person or entity;
(g) Is commercial in a way that violates these Terms, including but not limited to, using the Platform to engage in cloud governance consulting or other analysis for a third party except as explicitly permitted by OCI in writing;
(h) Falsely states, misrepresents, or conceals your affiliation with another person or entity;
(i) Accesses or uses the account of another user without permission;
(j) Distributes computer viruses or other code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or electronic communications equipment;
(k) Interferes with, disrupts, disables, overburdens, or destroys the functionality or use of any features of the Platform, or the servers or networks connected to the Platform, or any of the Platform;
(l) “Hacks” or accesses without permission our proprietary or confidential records, those of another user, or those of anyone else;
(m) Improperly solicits personal or sensitive information from other users including without limitation address, credit card or financial account information, or passwords;
(n) Decompiles, reverse engineers, disassembles, or otherwise attempts to derive source code from the Platform;
(o) Removes, circumvents, disables, damages, or otherwise interferes with security-related features, or features that enforce limitations on use of the Platform;
(p) Uses automated or manual means to violate the restrictions in any robot exclusion headers on the Platform, if any, or bypasses or circumvents other measures employed to prevent or limit access, for example by engaging in practices such as “screen scraping,” “database scraping,” or any other activity with the purpose of obtaining lists of users or other information;
(q) Modifies, copies, scrapes or crawls, displays, distributes, publishes, licenses, sells, rents, leases, lends, transfers, or otherwise commercializes any materials or content on the Platform;
(r) Uses the Platform for benchmarking, or to compile information for a product or service;
(s) Downloads (other than through page caching necessary for personal use, or as otherwise expressly permitted by these Terms), distributes, posts, transmits, performs, reproduces, broadcasts, duplicates, uploads, licenses, creates derivative works from, or offers for sale any content or other information contained on or obtained from or through the Platform, by any means except as provided for in these Terms or with the prior written consent of OCI; or
(t) Attempts to do any of the foregoing.
Section 4.02 In addition, Customers shall not, and shall not permit others to, do the following with respect to the Platform:
(a) Use the Platform or allow access to them in a manner that circumvents contractual usage restrictions or that exceeds authorized use or usage metrics set forth in these Terms, any applicable Corporate Terms;
(b) License, sub-license, sell, re-sell, rent, lease, transfer, distribute or time share or otherwise make any portion of the Platform or OCI’s then-current technical and functional documentation for the Platform (“Documentation”) available for access by third parties except as otherwise expressly provided in these Terms or Corporate Terms; or
(c) Access or use the Platform or Documentation for the purpose of: (i) developing or operating products or services intended to be offered to third parties in competition with the Platform or (ii) allowing access to your account by a direct competitor of OCI.
Section 4.03 You may not frame the Platform, place pop-up windows over its pages, or otherwise affect the display of its pages. You may link to the Platform, provided that you acknowledge and agree that you will not link the Platform to any website containing any inappropriate, profane, defamatory, infringing, obscene, indecent, or unlawful topic, name, material, or information or that violates any intellectual property, proprietary, privacy, or publicity rights. Any violation of this provision may, in our sole discretion, result in termination of your use of and access to the Platform effective immediately.
Section 4.04 You acknowledge that we have no obligation to monitor your – or anyone else’s – access to or use of the Site for violations of these Terms, or to review or edit any content. However, we have the right to do so for the purpose of operating and improving the Site (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes, analytics, and advertising), to ensure your compliance with these Terms and to comply with applicable law or the order or requirement of a court, consent decree, administrative agency or other governmental body.
Section 6.01 Fees. Provision of the Platform by OCI is subject to Customer’s payment in full of all Fees due under the Corporate Terms. You acknowledge that failure by the Customer to pay any Fees may result in the immediate termination of any access to the Platform for you and any Authorized Users. OCI expressly disclaims liability for any damages arising from the termination of access to the Platform due to any failure to pay requisite Fees.
Section 7.01 Data Generally. You shall be responsible for data that you provide or use in Platform. You are solely responsible for determining the suitability of the Platform for your business or organization and complying with any regulations, laws, or conventions applicable to the data you provide and your use of the Platform.
Section 7.02 Personal Data. You warrant that your collection and use of any personal information or data provided while using the Platform complies with all applicable data protection laws, rules, and regulations. Customer and its Authorized Users acknowledge that OCI may process such personal data in accordance with the DPA.
Section 8.01 Customer Warranties. Customer hereby represents and warrants to OCI that: (a) it has all requisite rights and authority to use the Platform under these Terms and to grant all applicable rights herein; (b) it is responsible for all use of the Platform associated with its account; (c) it is solely responsible for maintaining the confidentiality of its account names and password(s); (d) it agrees to immediately notify OCI of any unauthorized use of Customer’s account of which it becomes aware; (e) it agrees that OCI will not be liable for any losses incurred as a result of a third party’s use of its account, regardless of whether such use is with or without its knowledge and consent; (f) it will use the Platform for lawful purposes only and subject to these Terms; (g) any information it submits to OCI is true, accurate, and correct; and (h) it will not attempt to gain unauthorized access to the Platform, other accounts, computer systems, or networks under the control or responsibility of OCI through hacking, cracking, password mining, or any other unauthorized means.
Section 8.02 Disclaimer. THE PLATFORM, DOCUMENTATION, AND SITE ARE PROVIDED “AS IS” AND “AS AVAILABLE.” YOUR USE OF THE PLATFORM, DOCUMENTATION, AND SITE SHALL BE AT YOUR SOLE RISK. OCI AND ITS RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, SHAREHOLDERS, AGENTS, AFFILIATES, SUBSIDIARIES, AND LICENSORS (“OCI PARTIES”): (a) MAKES NO ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER; (b) EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, AND TITLE; AND (c) DOES NOT WARRANT THAT THE PLATFORM, DOCUMENTATION, OR SITE ARE OR WILL BE ERROR-FREE, WILL MEET YOUR REQUIREMENTS, OR BE TIMELY OR SECURE. YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE RESULTING FROM USE OF THE PLATFORM, DOCUMENTATION, OR SITE.
Section 8.03 Third Party Services. We may provide, or third parties may provide, links to other third-party web sites, services, or resources that are beyond our control. We make no representations as to the quality, suitability, functionality, or legality of any third-party content to which links may be provided, and you hereby waive any claim you might have against us with respect to such services. OCI IS NOT RESPONSIBLE FOR THE CONTENT ON THE INTERNET OR WEB PAGES THAT ARE LOCATED OUTSIDE THE SITE OR POSTS OF USER CONTENT, OR FOR YOUR USE OF ANY THIRD PARTY SERVICES. Your correspondence or business dealings with, or participation in promotions of, advertisers or partners found on or through the Site, including payment and delivery of related goods or services, and any other terms, conditions, warranties, or representations associated with such dealings, are solely between you and such advertiser or partner. You agree that we are not responsible or liable for any loss or damage of any sort incurred as the result of any such dealings or as the result of the presence of such advertisers or links to third-party web sites or resources on the Site.
TERM AND TERMINATION
Section 9.01 Term. The period of effectiveness of these Terms (“Term”), with respect to Platform, begins on the date the Customer accepts these Terms and continues until the Customer’s Corporate Terms are terminated or the user’s use of the Platform ceases (including as a result of termination in accordance with this Section), whichever is later. The license to use the Platform shall immediately terminate upon the termination of the Corporate Terms.
Section 9.02 Suspension of Access to Platform. Notwithstanding anything to the contrary, OCI may suspend any use of the Platform, remove any content or disable or terminate any account or Authorized User that OCI reasonably and in good faith believes violates these Terms. OCI will use commercially reasonable efforts to notify you prior to any such suspension or disablement, unless OCI reasonably believes that: (a) it is prohibited from doing so under applicable law or under legal process, such as court or government administrative agency processes, orders, mandates, and the like; or (b) it is necessary to delay notice in order to prevent imminent harm to the Platform or a third party. Under circumstances where notice is delayed, OCI will provide the notice if and when the related restrictions in the previous sentence no longer apply.
Section 10.01 Indemnification. You will defend, indemnify, and hold us, our affiliates, officers, directors, employees, suppliers, consultants, and agents harmless from any and all third-party claims, liability, damages, and costs (including, but not limited to, attorneys’ fees) arising from or related to, as applicable: (a) your access to and use of the Platform; (b) violation of these Terms by you or your Account Administrator(s) or Authorized Users, as applicable; (c) infringement of any intellectual property or other right of any person or entity by you; (d) the nature and content of all Customer Data processed by the Platform; or (e) any products or services purchased or obtained by you in connection with the Platform.
Section 10.02 Defense. OCI retains the exclusive right to settle, compromise, and pay, without your prior consent, any and all claims or causes of action that are brought against us. We reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims. You agree not to settle any matter in which we are named as a defendant and/or for which you have indemnity obligations without our prior written consent. We will use reasonable efforts to notify you of any such claim, action, or proceeding upon becoming aware of it.
Section 10.03 LIMITATIONS OF LIABILITY.
11.1 Disclaimer of Consequential Damages. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN THESE TERMS, OCI WILL NOT, UNDER ANY CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, COVER, PUNITIVE, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THE USE OF THE PLATFORM, INCLUDING, BUT NOT LIMITED TO, GOODWILL, WORK STOPPAGE, LOST PROFITS, OR LOSS OF BUSINESS, EVEN IF APPRISED OF THE LIKELIHOOD OF SUCH LOSSES, AND WHETHER SUCH CLAIMS ARE MADE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
Section 10.04 Liability Limitation. OUR TOTAL LIABILITY TO YOU FOR ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THESE TERMS OR TO YOUR USE OF THE SITE (INCLUDING WITHOUT LIMITATION WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL OR EQUITABLE THEORY, WILL NOT EXCEED THE TOTAL AMOUNT PAID BY YOU TO OCI FOR THE OCI SERVICE(S) GIVING RISE TO THE CLAIM UNDER THESE TERMS DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE DATE OF THE FIRST EVENT GIVING RISE TO LIABILITY, OR $100, WHICHEVER IS GREATER. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS LIMIT.
Section 11.01 Assignability. You may not assign your rights or obligations under these Terms without OCI’s prior written consent. If consent is given, these Terms will bind your successors and assigns. Any attempt by you to transfer your rights, duties, or obligations under these Terms except as expressly provided in these Terms is void. OCI may freely assign its rights, duties, and obligations under these Terms.
Section 11.02 Notices. Except as otherwise permitted by these Terms, any notice required or permitted to be given in connection with the Platform will be effective only if it is in writing and sent using: (a) Platform; (b) by certified or registered mail; or (c) insured courier, to the appropriate party at the address set forth in Customer’s registration information or on the Site for OCI, with a copy, in the case of OCI, to email@example.com. Notices are deemed given upon receipt if delivered using Platform, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.
Section 11.03 Force Majeure. Except for any payment obligations, neither you nor OCI will be liable for failure to perform any obligation under these Terms to the extent such failure is caused by a force majeure event (including acts of God, natural disasters, war, civil disturbance, action by governmental entity, strike, and other causes beyond the party’s reasonable control). The party affected by the force majeure event will provide notice to the other party within a commercially reasonable time and will use commercially reasonable efforts to resume performance as soon as practicable. Obligations not performed due to a force majeure event will be performed as soon as reasonably possible when the force majeure event concludes.
Section 11.04 Governing Law and Venue. These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of Nebraska, U.S.A., without reference to its choice of law rules to the contrary. For purposes of determining the governing law, you and OCI agree that OCI is the proponent of these Terms. Customer and OCI submit to the exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Douglas County, Nebraska.
Section 11.05 Waiver. The waiver by either you or OCI of any breach of any provision of these Terms does not waive any other breach. The failure of any party to these Terms to insist on strict performance of any covenant or obligation in accordance with these Terms will not be a waiver of such party’s right to demand strict compliance in the future, nor will the same be construed as a novation of these Terms.
Section 11.06 Binding Arbitration. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
Section 11.07 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
Section 11.08 Severability. If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the grant of any license to you under these Terms is found to be illegal, unenforceable, or invalid, the license will immediately terminate.
Section 11.09 How to Contact Us. If you have any questions about the Site or Terms, pricing, complaints, or other inquiries, please contact OCI at11422 Miracle Hills Drive, Suite 300, Omaha, NE 68154, United States, or by calling from the U.S 402-445-0764. California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.