1. Online Subscription Agreement
This Online Subscription Agreement(“Agreement”) is between the entity you represent, or, if you do not designate an entity in connection with a subscription purchase or renewal, you individually (“you” or “your”), and OpsCompass, LLC (“OpsCompass”, “we”, “us”, or “our”).
OpsCompass, LLC provides Software as a Service tools intended to help you and companies like you with cloud assessment, monitoring, remediation, and security (“Services”). The Services are delivered online in a dynamic capacity, including regular updates and patches used to keep OpsCompass operating optimally, through this website located opscompass.com/login (“Site”).
3. Use of Services
3.1 Right to Use. Subject to your compliance with this Agreement, we grant you during your selected term, a non-exclusive, non-transferable, non-sublicensable, limited right to access and use the Services. We reserve all other rights.
3.2 Acceptable Use. You may use the Services and Site only in accordance with this Agreement. You may not (a) reverse engineer, decompile, disassemble, or work around technical limitations in the Services or Site, except to the extent applicable law permits it despite these limitations; (b) disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters your use of the Services or Site; (c) rent, lease, lend, sell, resell, transfer, or host the Services, Site, or any portion thereof, to or for third parties without our prior written consent; (d) modify, alter, tamper with, repair or otherwise create derivative works of the Services or Site; (e) remove, obscure or alter any proprietary right notice on or in connection with the Services or Site; (f) use the Services or Site to knowingly store or transmit malicious code, viruses, Trojan horses, or worms that may damage our computer systems; (g) interfere with or disrupt the integrity or performance of the Services or Site; (h) attempt to gain unauthorized access to the Services, Site or related systems or networks; or (i) use the Services or Site to infringe the copyrights or other intellectual property rights of third parties.
3.3 End Users. You control access by you and your end users, which access is conditioned upon each end user’s acceptance of this Agreement. You are responsible for you and your end user’s use of the Services in accordance with this Agreement and you will be liable for all your and your end users’ acts and omissions.
3.4 Customer Data. Neither OpsCompass, the Site or the Services store, collect, maintain or transmit any of your or your end users’ content, information, data, and materials (“Customer Data”). OpsCompass does not and will not assume any obligations with respect to any Customer Data or to your use of the Services other than as expressly set forth in this Agreement or as required by applicable law.
3.5 Responsibility for Your Accounts. You are responsible for maintaining the confidentiality of any non-public authentication credentials associated with your or your end user’s use of the Services. You must immediately notify our customer support team about any possible unauthorized or misuse of the Services, your accounts or authentication credentials, or any security incident related to the Services.
3.6 Updates and Preview Releases. We reserve the right, in our sole discretion, to update, or modify the features, functionality or other aspects of the Service at any time to improve the Service. We may make previews of updates or modifications available to you in our sole discretion. All such previews are provided “as-is,” “with all faults,” and “as-available,” and are excluded from all limited warranties provided in this Agreement. Any such previews are not covered by customer support. We may change or discontinue any preview at any time without notice. We also may choose not to release any such preview into general availability.
3.7 Additional Software for Use with the Services. To enable optimal access to and use of the Services, you may need to install and use certain recommended software in connection with your use of the Services. A stable connection to the Internet is required.
Purchasing the Services
4.1 Commitment Offering. The Site provides offer details for available subscription offers for the Services. You commit in advance to purchase a specific quantity of subscriptions for the Services for use during a selected term and to pay upfront or on a periodic basis in advance of use pursuant to the terms of this Agreement and the Statement of Work that you may have signed to avail yourself of the Services..
4.2.A – By ordering or renewing a the Services, you agree to the offer details for such Services. Unless otherwise specified in those offer details, the Services are offered on an “as available” basis.
4.2.B – Some offers may permit you to modify the quantity of subscriptions ordered during the selected term. Additional quantities of subscriptions added to an order will expire at the end of the applicable term for Services. If you decrease the quantity during a term, we may charge you a cancellation fee for the decrease in quantity as described in this section.
4.3 Pricing and payment. Payments are due and must be in accordance with the terms set forth in the online order of Services you used on our website or, if your order for Services is set forth in a Statement of Work that you have signed, then on the terms as otherwise set forth in your signed Statement of Work.
4.3.A – Each monthly payment shall be due on the 1st day of the applicable month. If payment has not been received by the 15th day of such month, OpsCompass reserves the right to discontinue Services at any point and until payment has been received. If payment remains outstanding, OpsCompass reserves all rights associated with recovering the overdue payments, even when not enforced immediately, including, without limitation, charging interest on any payment not paid by the 15th day of such applicable month at a rate of 1% per month or the highest rate allowed by law, whichever is greater.
4.3.B – The price level applicable to the Services ordered may be based on the quantity of subscriptions you ordered. Some offers may permit you to modify the quantity of subscriptions ordered during the selected term and your price level may be adjusted accordingly, but price level changes will not be retroactive. During the applicable term, prices for Services will not be increased, as to your subscription, from those stated in your offer or posted in any formal offer description, at the time your subscription became effective or was renewed, except where prices are identified as temporary. All prices are subject to change at the beginning of any subscription renewal.
4.4.A – Upon renewal of the Services this Agreement will terminate, and the Services will thereafter be governed by the terms and conditions set forth on Opscompass.com on the date on which your Services are renewed (the “Renewal Terms”). If you do not agree to any of the Renewal Terms, your sole recourse is to decline to renew your Services; attempts by you to unilaterally or informally modify the Renewal Terms are not binding on OpsCompass.
4.4.B – You may choose to have your Services automatically renew or terminate upon expiration of the term. Automatic renewal is pre-selected. You can change your selection at any time during the term. If the existing term is longer than one calendar month, we will provide you with notice of the automatic renewal before the expiration of the term.
4.5 Taxes. Prices are exclusive of any taxes unless otherwise specified on the invoice as tax inclusive. You must pay any applicable taxes, including value added, goods and services, sales, gross receipts, stamp, or other transaction taxes, fees, charges or surcharges, or any regulatory cost recovery surcharges or similar amounts that are owed under this Agreement and which we are required or permitted to collect from you under applicable law.
5. Term, Termination, and Suspension
5.1 Agreement Term and Termination. This Agreement will remain in effect until the expiration, termination, or renewal of your subscription, whichever is earliest.
5.2 Subscription Termination. You may terminate your subscription at any time during its term by giving OpsCompass prior written notice specifying the termination effective date; however, you must pay all amounts due and owing, including any applicable Cancellation Fee, before the termination will become effective and any applicable charges will continue to accrue until the termination is effective. All one time fees associated with the Service are non-refundable. For all other subscriptions, if you terminate a subscription before the end of the term, you must pay a fee equal to the remaining subscription fees owed by you to OpsCompass for the term of your subscription or one-month of the applicable subscription fee, whichever is greater (“Cancellation Fee”).
5.3 Suspension. We may, at any time, with or without notice, suspend your use of the Services for: (1) preventing unauthorized access to the Services or Customer Data; (2) your failure to respond to a claim of alleged infringement within a reasonable time; (3) your failure to timely pay amounts due under this Agreement; (4) your failure to abide by the acceptable use terms set forth herein or your violation of any other term of this Agreement; (5) scheduled or unscheduled maintenance; (6) unusual spikes in activity or use of the Services; (7) unplanned technical problems or outages; or (8) purposes of maintaining the security and/or integrity of our network, hardware or associated systems or those of our third party providers.
6. Warranties and Responsibilities
6.1 Disclaimer. THE SERVICES AND ALL INFORMATION OR TOOLS PROVIDED IN CONNECTION WITH THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, ORAL OR WRITTEN, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SATISFACTION, QUALITY, ACCURACY, COMPLETENESS, ADEQUACY OF INFORMATION AND NON-INFRINGEMENT. WE SHALL HAVE NO RESPONSIBILITY FOR ERRORS OR OMISSIONS. WE DO NOT WARRANT THAT DEFECTS CAN BE CORRECTED. WE DO NOT REPRESENT OR WARRANT THAT THE SITE OR ITS SERVER(S) ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. OUR DIGITAL TOOLS MAY CONTAIN LINKS TO THIRD PARTY SITES. THESE LINKS ARE PROVIDED AS A CONVENIENCE. WE ARE NOT RESPONSIBLE FOR THE CONTENTS OF ANY LINKED SITE OR ANY LINK CONTAINED IN A LINKED SITE.
We shall not be liable for any damages or injury resulting from your access to, or inability to access the Site or from your reliance on any information provided at the Site.
6.2 Limitations. This limited warranty is subject to the following limitations:
6.2.A – any implied warranties, guarantees, or conditions not able to be disclaimed as a matter of law will survive no more than one year from the start of the limited warranty or the applicable minimum allowed by law, whichever is less, as permitted by law;
6.2.B – this limited warranty does not cover problems caused by accident, abuse or use of the Services in a manner inconsistent with this Agreement or the published documentation or guidance, as updated from time to time, or resulting from events beyond our reasonable control;
6.2.C – this limited warranty does not apply to problems caused by a failure to meet minimum system requirements; and this limited warranty does not apply to previews or limited offerings.
7. Defense of Claims
7.1.A – Provided your account with OpsCompass is not delinquent and you are not otherwise in default, OpsCompass will defend you with legal counsel of our choosing against any claims made by an unaffiliated third party that the Services infringe on a third party’s patent, copyright, trademark, or makes unlawful use of its trade secret.
7.1.B – You will defend OpsCompass against any claims made by an unaffiliated third party that any Customer Data, customer solution, or Non-OpsCompass products, or services you provide, directly or indirectly, in using the Services infringes the third party’s patent, copyright, trademark, or makes unlawful use of its trade secret or that arises from what could be construed as unreasonable use or for purposes that would be deemed not acceptable by a reasonable person.
7.2 Limitations. The OpsCompass obligations above will not apply to a claim or award based on: (i) any customer solution, Customer Data, Non-OpsCompass products, modifications you make to the products, services, or materials you provide or make available as part of using the Services; (ii) your combination of the Services with, or damages based upon the value of, Customer Data, or a Non-OpsCompass product, data, or business process; (iii) your use of an OpsCompass trademark without our express written consent, or your use of the Services after we notify you to stop due to a third-party claim; (iv) your redistribution of the Services to, or use for the benefit of, any unaffiliated third party; (v) products provided free of charge; (vi) failure to timely implement any modifications, upgrades, replacements or enhancements made available to you; (vii) your negligent acts or omissions; or (viii) your obligations under Section 7.1.2.
7.3 Remedies. If OpsCompass reasonably believes that a claim from instances described above may bar your use of the Services, we will seek to: (i) obtain the right for you to keep using it; or (ii) modify or replace it with a functional equivalent and notify you to stop use of the prior version of the Services. If these options are not commercially reasonable, we may terminate your rights to use the Services and then refund any advance payments for unused subscription rights.
7.4 Obligations. Each party must notify the other promptly of a claim under this section. The party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) give reasonable help in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in giving that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties’ respective rights to defense and payment of judgments (or settlement the other consents to) under this section are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.
8. Limitation of liability
8.1 Limitation. The aggregate liability of OpsCompass for any claim under this Agreement is limited to direct damages up to the amount paid by you under this Agreement for the Services during the twelve (12) months before the cause of action arose; provided, that in no event will OpsCompass’ aggregate liability under this Agreement exceed the amount paid for the Services during the term of your subscription. For products provided free of charge, OpsCompass’ liability is limited to direct damages up to $3,000.00 USD.
8.2 EXCLUSION. OpsCompass will not be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, loss of content or data or loss of business information, even if OpsCompass knew such damage was possible or reasonably foreseeable.
9.1 “Confidential Information” shall include confidential or proprietary technical, business or financial information, data and materials disclosed by or on behalf of OpsCompass to you, whether orally or in writing, that reasonably should be understood to be confidential given the nature of the information and the circumstances surrounding the disclosure. Notwithstanding the foregoing, without limitation, the Service, and any associated pricing, documentation, product roadmaps, business and marketing plans, and any information related to the foregoing constitutes the Confidential Information of OpsCompass, regardless of a lack of confidentiality marking or reasonableness determination.
9.2 You agree to hold Confidential Information in confidence and protect such Confidential Information from disclosure to any third party, other than as expressly set forth in this Agreement and to limit access to the OpsCompass’s Confidential Information to such of your personnel, affiliates, agents, subcontractors, suppliers and/or consultants, if any, who have a need to access such information in accordance with the terms of this Agreement. You agree that all Confidential Information is proprietary to OpsCompass or such third party, as applicable, and shall remain the sole property of the disclosing party or such third party.
9.3 Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to OpsCompass; (ii) was known to you prior to its disclosure by OpsCompass without restriction on use or disclosure; (iii) was independently developed by you without breach of any obligation owed to OpsCompass; or (iv) is rightfully received from a third party without restriction on use or disclosure.
10.1 We own and retain all right, title, and interest in and to the Services, the Site, our intellectual property, and the Feedback including all intellectual property rights contained therein. Except for the express licenses granted in this Agreement, no other licenses are granted by us hereunder, by implication, estoppel or otherwise, and all rights not expressly granted herein are reserved by us. If you or your end users provide any ideas, suggestions or recommendations to us regarding the Services (“Feedback”), we shall be free to retain, use, and incorporate such Feedback in the Services, without payment of royalties or other consideration to you or your end users.
10.2 The Service and Site contains valuable trademarks owned and used by us to distinguish our services from those of others. The Service and Site may also contain references to other entities’ trademarks and service marks, but such references are for identification purposes only. We do not claim ownership in, or any affiliation with, any third party trademarks or service marks appearing in the Service or Site. Parties agree not to use or display trademarks without prior written consent or the consent of the owner of such mark.
11. Availability of Service; Maintenance
11.1 You understand and agree that interruptions of data processing and access may occur due to planned or emergency Maintenance and repair by OpsCompass, or due to a force majeure event (as governed by Section 12.9). You agree that under no circumstances will OpsCompass be held liable for any financial or other damages due to such interruptions. For the purposes of this Section, “Maintenance” shall include but is not limited to one quarterly (forty-eight hour) planned Maintenance window if needed, brief planned Maintenance windows (scheduled in advance, as needed), and emergency Maintenance windows (critical, unforeseen maintenance needed for the security or performance of the platform). We will make reasonable effort to notify you in writing in advance of any planned Maintenance.
12.1 Notices. You must send notices by prepaid USPS mail, return receipt requested, or nationally recognized overnight courier (such as FedEx) with confirmed delivery, to the address below. Notices shall be sent to:
OpsCompass 11118 I Street Suite 101 Omaha, NE 68137
With a copy to:
OpsCompass Legal C/O McGrath North Mullin & Kratz, PC LLO 1601 Dodge Street, Suite 3700 Omaha, NE 68102
Attention: Lee H. Hamann
You agree to receive electronic notices from OpsCompass, which will be sent by email to the account administrator you specify on the Site. Notices are effective on the date on the return receipt or, for email, on the date sent. You are responsible for ensuring that the account administrator email address that you specify on the Site is accurate and current. Any email notice that OpsCompass sends to that email address will be deemed to be effective when sent, whether or not you actually receive or review the email.
12.2 License Transfers and Assignment. You may not assign this Agreement either in whole or in part or transfer licenses without OpsCompass’ prior written consent, which consent may be withheld or conditioned in the sole and absolute discretion of OpsCompass.
12.3 Severability. If any part of this agreement is held unenforceable, the rest remains in full force and effect.
12.4 Waiver. Failure to enforce any provision of this agreement will not constitute a waiver.
12.5 No agency. This agreement does not create an agency, partnership, or joint venture.
12.6 No third-party beneficiaries. There are no third-party beneficiaries to this agreement.
12.7 Applicable law and venue. This agreement is governed by Nebraska law, without regard to its conflict of laws principles. Any action to enforce this agreement must be brought in a state or federal court sitting in Douglas County, State of Nebraska. This choice of jurisdiction does not prevent either party from seeking injunctive relief in any appropriate jurisdiction with respect to violation of the intellectual property rights of OpsCompass.
12.8 Entire agreement. This agreement is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications.
12.9 Force majeure. Neither party will be liable for any failure in performance due to causes beyond that party’s reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of the Services). This section will not, however, apply to your payment obligations under this agreement.
12.10 Contracting authority. If you are an individual accepting these terms on behalf of an entity, you represent that you have the legal authority to enter into this agreement on that entity’s behalf. If you specify an entity, or you use an email address provided by an entity you are affiliated with (such as an employer) in connection with a subscription purchase or renewal, that entity will be treated as the owner of the subscription for purposes of this agreement.
12.11 Government customers should consult with OpsCompass. Government customers should consult with OpsCompass prior to acceptance. If you are a government customer, before accepting this agreement, you should consult with your OpsCompass’ representative to assure full compliance with local laws and governmental procurement processes.