OpServices License and Services Agreement
Agreement between OpServices OpCEM and Licensed.
OpServices product purchased via the OpServices on‐line shopping store. This License and Services Agreement is between OpServices OpCEM and the Licensed who executes this Agreement. Except for Licensed with existing OpServices Licensing and Services Agreement, this Agreement shall govern Licensed’s initial purchase on the Effective Date as well as any future purchases made by the Licensed with reference to this Agreement. The Agreement permits Licensed to purchase Licenses, Extensions and Services from OpServices referencing this Agreement and sets forth the basic terms and conditions under which the OpServices Products are licensed. OpServices’s License and Services Agreement is conditioned on the Licensed’s acceptance without modification of the terms, conditions, and notices contained herein. Licensed Permitted Use of OpServices Products constitutes Licensed agreement to all such terms, conditions, and notices.
1. OpServices OpCEM License and Services Agreement
The License provides OpServices Proprietary software license, services and support under the following
terms:
(a) Licensed must provide accurate and complete registration information when you register to use OpCEM products.
(b) If a monitored device limit applies to the product being purchased you may not exceed the monitored device limit granted to you under the License purchased.
(c) You are responsible for the security of your passwords and for any use of your account. You must immediately notify us of any unauthorized use of your OpCEM deployment by contacting us at: info@opservices.com.br
(d) Since the Agreement is a term contract, the license and Services Agreement is effective as of the
date when the license purchase transaction is accepted by OpServices for on‐line purchases.
2. Definitions
(a) “Designated System” means a single server or virtual server upon which the OpServices Proprietary
Software is solely licensed for use.
(b) “Device” an autonomous computing device, including but not limited to, a server, virtual machine, workstation, desktop or laptop, storage device, network device or a standalone environmental sensor or security device that is monitored by OpCEM Software. The number of devices to be monitored is not affected by the manner in which monitoring data is collected; e.g. directly interrogated by OpCEM software, sent to OpCEM software by the monitored device or via another monitoring system provided by OpServices or a third‐party.
(c) “Documentation” means any technical specification documentation generally made available by OpCEM to a Licensed.
(d) “Effective Date” means the date when the subscription purchase transaction is accepted by OpServces for on‐line purchases.
(e) “OpCEM Products” – means the OpServices Proprietary Software and the OpCEM Software and the accompanying Documentation and Updates delivered to Licensed under the terms of this Agreement.
(f) “OpServices Proprietary Software” means all the proprietary software programs, configurations, scripts, reports, and graphs contained in the OpCEM Product.
(g) “Permitted Use” means use by Licensed for internal business purposes only and not for hosted service resale
(h) “Support Services” means technical assistance services for OpServices products.
(i) “Third Party Software” means software which may be necessary for Use of OpServices Products that is not included in the License purchased by Licensed.
(j) “Updates” means (a) any major new releases, modifications or enhancements to the OpServices Products as designated by a change in the number to the left of the decimal in the version number and (b) any code corrections, patches, updates and minor version releases of the OpServices Products as designated by a change in the number to the right of the decimal in the version number, in each case which OpServices elects to generally commercially release to Licensed during the applicable License Term.
3. Payment
(a) Licensed agrees to pay OpServices the total fees for the items ordered on‐line or in each Order Form. Payment terms are net cash in US dollars and are due upon execution of the Agreement for online
purchases. All payments are non‐refundable. Except for taxes based on the net income of OpServices, Licensed shall be responsible for all taxes, withholdings, duties and levies (including interest and penalties for late payment) arising from the order, whether or not listed on OpServices’s invoice. The Licensed agrees to pay OpServices the total fees and any additional fees if the Licensed exceeds the quantity of Devices procured. OpServices will not compensate or credit License Fees not used during a License Term.
(b) The License can be canceled for any reason at the end of your current License term. Once the
License term expires, the right to use OpServices Products and any Support Services or Extensions under
this Agreement are terminated.
(c) Licensed will be required to renew the License on‐line unless approved otherwise by OpServices.
(d) The Licensed must renew the License through the payment of the License fee to continue to use the OpServices Proprietary Software or Extensions and receive Support Services and Updates. Otherwise the Licensed can continue using the OpServices Proprietary Software without Support Services and Updates. Subscription renewals, or fees for an increase in the number of License, are based on the OpServices standard list price at the time of renewal or increase
4. License Grant
Subject to the terms of this Agreement, OpServices hereby grants Licensed an annual, non‐exclusive, nontransferable, non‐assignable, non‐sublicensable right to use the OpServices Proprietary Software for the Permitted Use on the Designated System (if applicable) for each OpServices Product. Licensed shall not (and shall not allow any third party to): (a) distribute, sublicense, transfer, loan, rent, lease, or use the OpServices Proprietary Software(or any portion thereof) for time sharing, hosting, service provider or like purposes or (b) modify any part of the OpServices Proprietary Software, create a derivative work of any part of the OpServices Proprietary Software, or incorporate the OpServices Proprietary Software into or with other software, except to the extent expressly authorized in writing by OpServices.
5. Support Services
(a) Designated Contact. Based on Licensed’s of opServices Products, you must designate Support
contacts who are permitted to access OpServices Support. OpServices’s Support accessibility is governed by the License terms purchased, including pre‐requisite training completion if applicable. OpServices will verify compliance with the terms of this license agreement as a condition of providing Support.
(b) Updates. Licensed is responsible for maintaining functional hardware, firmware or Third Party software necessary to implement or use the Updates. OpServices does not provide operating system(s) updates. At OpServices’s option, OpServices will use commercially reasonable efforts to resolve incompatibilities between the OpServices Products and supported operating system(s).
(c) Support / Error Reporting / Corrections. During the License Term, opServices will provide technical assistance for the OpServices Products using the support mechanisms defined for each support level. The Licensed must provide information that will allow OpServices to reproduce the error. OpServices shall use commercially reasonable efforts to correct reproducible OpServices Product errors with a level of effort commensurate with the severity of the error as set forth in the applicable service level agreement.
(d) Limitations and Exclusions. Support does not apply to problems resulting from: (i) errors not attributable to the opServices Products (ii) opServices Products being used with hardware or software not specified in the Documentation; (iii) any additions or modifications to OpServices Products made by Licensed or any third party and not approved by OpServices; (iv) defects in the OpServices Products due to accident, abuse or improper use by Licensed; (v) Virtual Appliances that have been changed or modified beyond their initial configuration or function or (vi) OpServices Products provided on a no charge or evaluation basis. OpServices only provides support to the current release and the prior two releases of the OpServices Products.
6. Intellectual Property Ownership and Requirements
(a) OpServices Proprietary Software. Notwithstanding anything to the contrary contained in this Agreement, except for the limited license rights expressly provided herein, OpServices have and will retain all rights, title and interest in and to the OpServices Proprietary Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works of the OpServices Proprietary Software. Licensed acknowledges that it is obtaining only a limited license right to the OpServices Proprietary Software and that no ownership rights are being conveyed to Licensed under this Agreement or otherwise. Licensed agrees not to register or attempt to register, directly or indirectly any intellectual property rights of OpServices (including URLs that utilize, or that are substantially similar to OpServices’ registered trademarks).
(b) Confidentiality of OpServices Proprietary Software. Neither Licensed nor its employees or agents shall cause or allow the OpServices Proprietary Software or any information or data identified as OpServices confidential or proprietary information to be disclosed to third parties or duplicated or used except as expressly permitted in this Agreement. Licensed will take all reasonable steps, both during and after the Term of this Agreement, to ensure that no unauthorized person will have access to OpServices Proprietary Software or Documentation and that no unauthorized copy, distribution or disclosure, in whole or in part, is made in any form.
(c) Copyright Notices. All copies of the OpServices Products reproduced by Licensed must include all proprietary marks, legends and copyright notices that appear on the original copies, including both size of location of marks, of the OpServices Products provided to Licensed.
7. Limited Warranty
OpServices warrants that, for a period of thirty (30) days from the date of delivery (the “Warranty Period”), the OpServices Proprietary Products shall perform substantially in accordance with the Documentation. In the event of a breach of the warranty set forth in this Section 7 (Limited Warranty), OpServices’ entire liability and Licensed’s exclusive remedy shall be (i) for OpServices to correct OpServices Proprietary Products bugs or errors that cause the breach of warranty, or (ii) if OpServices is unable to correct the OpServices Proprietary Products to operate as warranted, to provide Licensed with a refund of the License fees paid to OpServices during the then applicable License, upon removal of the OpServices Proprietary Products from the Designated System and Licensed’s return of the OpServices Proprietary Products to OpServices. OpServices shall have no obligation with respect to any warranty claim unless notified of such claim within the Warranty Period. The above warranty shall not apply: (i) if the OpServices Proprietary Products are used with components not supported in the Documentation;
(ii) if any additions or modifications to the OpServices Proprietary Products are made by Licensed or any third party; (iii) to defects in the OpServices Proprietary Products due to accident, abuse or improper use by Licensed; or (iv) to OpServices Proprietary Products provided on a no charge or evaluation basis.
8. Disclaimers
(a) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7 (LIMITED WARRANTY); THE OPSERVICES PRODUCTS IS PROVIDED TO LICENSED “AS IS.”
(b) THE WARRANTIES SET FORTH IN SECTION 7 (LIMITED WARRANTY) ARE GIVEN IN LIEU OF, AND LICENSED HEREBY WAIVES, ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT WITH RESPECT TO THE LIMITED WARRANTY SET FORTH IN 7 (LIMITED WARRANTY), LICENSED ASSUMES THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE OPSERVICES PRODUCTS.
9. Indemnification
(a) Subject to the limitation set forth in Section 10 (Limitation of Liability), OpServices shall, during the period of a paid License, defend and indemnify, at its expense, any claim or suit brought by a third party against Licensed alleging that OpServices Proprietary Software infringes a U.S. patent, U.S. copyright, or U.S.trademark and shall pay all costs and damages finally awarded. OpServices’ indemnification obligations under this Section 9 a) are conditioned on Licensed giving OpServices: (i) prompt written notice of such claim or suit (but in any event notice in sufficient time for OpServices to respond without prejudice), (ii) Licensed’s reasonable assistance and (iii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim.
(b) If Licensed’s Permitted Use of OpServices Proprietary Software under the terms of this Agreement is, or in OpServices opinion is likely to be, enjoined due to infringement, then OpServices will, at its sole option and expense, (i) obtain the right to continue using OpServices Proprietary Software, (ii) replace or modify the OpServices Proprietary Software so that it becomes non‐infringing, or (iii) if the remedies set forth in clauses (i) and (ii) are not available on a commercially reasonable basis, terminate the Agreement and refund to Licensed a pro‐rata portion of the Subscription fee paid by Licensed in respect of the applicable License Term, upon removal of the OpServices Proprietary Products from the Designated System and Licensed’s return of the OpServices Proprietary Products to OpServices.
(c) OpServices shall have no liability for actual or alleged infringement based upon the use of OpServices Proprietary Software outside the scope of the Permitted Use, in combination with other products, devices or software not furnished by OpServices, or arising out of modifications made to OpServices Proprietary Software by Licensed or any third party to the extent the claim or suit of infringement would not have occurred but for such combination or modification. OpServices disclaims all other liability for patent, trade secret and copyright and other intellectual property rights infringement, including any incidental, special or consequential damages.
(d) Consent for Internet-Based Services. The software features described here connect to OpServices or service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. In some cases, you may switch off these features or not use them. OpServices does not use the information to contact you.
(e) WITH RESPECT TO ANY CLAIMS OR ACTIONS RELATING TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH REGARD TO THE OPSERVICES PRODUCTS OR THIS AGREEMENT, THE REMEDIES SET FORTH IN THIS SECTION 9 (INDEMNIFICATION) SHALL BE LICENSED’S SOLE AND EXCLUSIVE REMEDY AND OPSERVICES’S SOLE OBLIGATION.
10. Limitation of Liability
IN NO EVENT WILL OPSERVICES OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, OR COST OF RECOVERY OR FOR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM THE USE OF THE OPSERVICES PRODUCTS, ACCOMPANYING DOCUMENTATION, EXTENSIONS, THIRD PARTY SOFTWARE RELATED TO THE OPSERVICES PRODUCTS, SUPPORT SERVICES, OR PROFESSIONAL SERVICES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF OPSERVICES OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL OPSERVICES LIABILITY EXCEED THE AGGREGATE AMOUNT PAID BY LICENSED TO OPSERVICES UNDER THIS AGREEMENT. LICENSED ACKNOWLEDGES AND AGREES THAT OPSERVICES’ FEES REFLECT THIS ALLOCATION OF RISK. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 10 (LIMITATION OF LIABILITY) WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
11. Miscellaneous Provisions
(a) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Rio Grande do Sul and Brazil without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Unless waived by OpServices in its sole discretion, the jurisdiction and venue for actions arising out of and related to the subject matter hereof shall be the Rio Grande do Sul and Brazil federal courts located in Porto Alegre, RS, Brazil, and both parties hereby submit to the personal jurisdiction of such courts.
(b) Customer Reference. Licensed agrees that OpServices can use Licensed’s company name and logo in connection with marketing and promotions for OpServices.
(c) Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors. OpServices may assign this Agreement to any affiliate or to any assignee of all or substantially all of OpServices assets (whether pursuant to a merger, change of control or otherwise). Licensed may not assign or transfer this Agreement, in whole or in part, without OpServices’ prior written consent. Any attempt to transfer or assign this Agreement in violation of this Section will be null and void.
(d) 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.
(e) Entire Agreement. This Agreement is 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.
(f) Term. This Agreement is effective as of the Effective Date and expires on the day that the term of the last License for any OpServices Proprietary Software licensed hereunder expires. Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach. Termination is not an exclusive remedy, and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Termination shall not relieve Licensed’s obligation to pay all fees that have accrued or are otherwise owed by Licensed, including any late payment fees.
(g) Termination. Upon any termination of this Agreement by OpServices pursuant to a material breach (Section 11(f)), Licensed shall cease any and all use of any OpServices Proprietary Software and destroy all copies thereof and so certify to OpServices in writing.
(h) Survival. Sections 2 (Definitions), 3 (Payment Terms), 4 (License Grant (but subject to Section 11(f)
above), 6 (Intellectual Property Ownership and Requirements), 8 (Disclaimers), 10 (Limitation of Liability) and 11 (Miscellaneous Provisions) shall survive any expiration or termination of this Agreement.
(i) Miscellaneous. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service. The terms of this Agreement shall prevail over any conflicts with terms of a Licensed purchase order.
(j) Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. 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 a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Licensed will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
OpServices License and Services Agreement
Agreement between OpServices OpCEM and Licensed.
OpServices product purchased via the OpServices on‐line shopping store. This License and Services Agreement is between OpServices OpCEM and the Licensed who executes this Agreement. Except for Licensed with existing OpServices Licensing and Services Agreement, this Agreement shall govern Licensed’s initial purchase on the Effective Date as well as any future purchases made by the Licensed with reference to this Agreement. The Agreement permits Licensed to purchase Licenses, Extensions and Services from OpServices referencing this Agreement and sets forth the basic terms and conditions under which the OpServices Products are licensed. OpServices’s License and Services Agreement is conditioned on the Licensed’s acceptance without modification of the terms, conditions, and notices contained herein. Licensed Permitted Use of OpServices Products constitutes Licensed agreement to all such terms, conditions, and notices.
1. OpServices OpCEM License and Services Agreement
The License provides OpServices Proprietary software license, services and support under the following
terms:
(a) Licensed must provide accurate and complete registration information when you register to use OpCEM products.
(b) If a monitored device limit applies to the product being purchased you may not exceed the monitored device limit granted to you under the License purchased.
(c) You are responsible for the security of your passwords and for any use of your account. You must immediately notify us of any unauthorized use of your OpCEM deployment by contacting us at: info@opservices.com.br
(d) Since the Agreement is a term contract, the license and Services Agreement is effective as of the
date when the license purchase transaction is accepted by OpServices for on‐line purchases.
2. Definitions
(a) “Designated System” means a single server or virtual server upon which the OpServices Proprietary
Software is solely licensed for use.
(b) “Device” an autonomous computing device, including but not limited to, a server, virtual machine, workstation, desktop or laptop, storage device, network device or a standalone environmental sensor or security device that is monitored by OpCEM Software. The number of devices to be monitored is not affected by the manner in which monitoring data is collected; e.g. directly interrogated by OpCEM software, sent to OpCEM software by the monitored device or via another monitoring system provided by OpServices or a third‐party.
(c) “Documentation” means any technical specification documentation generally made available by OpCEM to a Licensed.
(d) “Effective Date” means the date when the subscription purchase transaction is accepted by OpServces for on‐line purchases.
(e) “OpCEM Products” – means the OpServices Proprietary Software and the OpCEM Software and the accompanying Documentation and Updates delivered to Licensed under the terms of this Agreement.
(f) “OpServices Proprietary Software” means all the proprietary software programs, configurations, scripts, reports, and graphs contained in the OpCEM Product.
(g) “Permitted Use” means use by Licensed for internal business purposes only and not for hosted service resale
(h) “Support Services” means technical assistance services for OpServices products.
(i) “Third Party Software” means software which may be necessary for Use of OpServices Products that is not included in the License purchased by Licensed.
(j) “Updates” means (a) any major new releases, modifications or enhancements to the OpServices Products as designated by a change in the number to the left of the decimal in the version number and (b) any code corrections, patches, updates and minor version releases of the OpServices Products as designated by a change in the number to the right of the decimal in the version number, in each case which OpServices elects to generally commercially release to Licensed during the applicable License Term.
3. Payment
(a) Licensed agrees to pay OpServices the total fees for the items ordered on‐line or in each Order Form. Payment terms are net cash in US dollars and are due upon execution of the Agreement for online
purchases. All payments are non‐refundable. Except for taxes based on the net income of OpServices, Licensed shall be responsible for all taxes, withholdings, duties and levies (including interest and penalties for late payment) arising from the order, whether or not listed on OpServices’s invoice. The Licensed agrees to pay OpServices the total fees and any additional fees if the Licensed exceeds the quantity of Devices procured. OpServices will not compensate or credit License Fees not used during a License Term.
(b) The License can be canceled for any reason at the end of your current License term. Once the
License term expires, the right to use OpServices Products and any Support Services or Extensions under
this Agreement are terminated.
(c) Licensed will be required to renew the License on‐line unless approved otherwise by OpServices.
(d) The Licensed must renew the License through the payment of the License fee to continue to use the OpServices Proprietary Software or Extensions and receive Support Services and Updates. Otherwise the Licensed can continue using the OpServices Proprietary Software without Support Services and Updates. Subscription renewals, or fees for an increase in the number of License, are based on the OpServices standard list price at the time of renewal or increase
4. License Grant
Subject to the terms of this Agreement, OpServices hereby grants Licensed an annual, non‐exclusive, nontransferable, non‐assignable, non‐sublicensable right to use the OpServices Proprietary Software for the Permitted Use on the Designated System (if applicable) for each OpServices Product. Licensed shall not (and shall not allow any third party to): (a) distribute, sublicense, transfer, loan, rent, lease, or use the OpServices Proprietary Software(or any portion thereof) for time sharing, hosting, service provider or like purposes or (b) modify any part of the OpServices Proprietary Software, create a derivative work of any part of the OpServices Proprietary Software, or incorporate the OpServices Proprietary Software into or with other software, except to the extent expressly authorized in writing by OpServices.
5. Support Services
(a) Designated Contact. Based on Licensed’s of opServices Products, you must designate Support
contacts who are permitted to access OpServices Support. OpServices’s Support accessibility is governed by the License terms purchased, including pre‐requisite training completion if applicable. OpServices will verify compliance with the terms of this license agreement as a condition of providing Support.
(b) Updates. Licensed is responsible for maintaining functional hardware, firmware or Third Party software necessary to implement or use the Updates. OpServices does not provide operating system(s) updates. At OpServices’s option, OpServices will use commercially reasonable efforts to resolve incompatibilities between the OpServices Products and supported operating system(s).
(c) Support / Error Reporting / Corrections. During the License Term, opServices will provide technical assistance for the OpServices Products using the support mechanisms defined for each support level. The Licensed must provide information that will allow OpServices to reproduce the error. OpServices shall use commercially reasonable efforts to correct reproducible OpServices Product errors with a level of effort commensurate with the severity of the error as set forth in the applicable service level agreement.
(d) Limitations and Exclusions. Support does not apply to problems resulting from: (i) errors not attributable to the opServices Products (ii) opServices Products being used with hardware or software not specified in the Documentation; (iii) any additions or modifications to OpServices Products made by Licensed or any third party and not approved by OpServices; (iv) defects in the OpServices Products due to accident, abuse or improper use by Licensed; (v) Virtual Appliances that have been changed or modified beyond their initial configuration or function or (vi) OpServices Products provided on a no charge or evaluation basis. OpServices only provides support to the current release and the prior two releases of the OpServices Products.
6. Intellectual Property Ownership and Requirements
(a) OpServices Proprietary Software. Notwithstanding anything to the contrary contained in this Agreement, except for the limited license rights expressly provided herein, OpServices have and will retain all rights, title and interest in and to the OpServices Proprietary Software (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights) and all copies, modifications and derivative works of the OpServices Proprietary Software. Licensed acknowledges that it is obtaining only a limited license right to the OpServices Proprietary Software and that no ownership rights are being conveyed to Licensed under this Agreement or otherwise. Licensed agrees not to register or attempt to register, directly or indirectly any intellectual property rights of OpServices (including URLs that utilize, or that are substantially similar to OpServices’ registered trademarks).
(b) Confidentiality of OpServices Proprietary Software. Neither Licensed nor its employees or agents shall cause or allow the OpServices Proprietary Software or any information or data identified as OpServices confidential or proprietary information to be disclosed to third parties or duplicated or used except as expressly permitted in this Agreement. Licensed will take all reasonable steps, both during and after the Term of this Agreement, to ensure that no unauthorized person will have access to OpServices Proprietary Software or Documentation and that no unauthorized copy, distribution or disclosure, in whole or in part, is made in any form.
(c) Copyright Notices. All copies of the OpServices Products reproduced by Licensed must include all proprietary marks, legends and copyright notices that appear on the original copies, including both size of location of marks, of the OpServices Products provided to Licensed.
7. Limited Warranty
OpServices warrants that, for a period of thirty (30) days from the date of delivery (the “Warranty Period”), the OpServices Proprietary Products shall perform substantially in accordance with the Documentation. In the event of a breach of the warranty set forth in this Section 7 (Limited Warranty), OpServices’ entire liability and Licensed’s exclusive remedy shall be (i) for OpServices to correct OpServices Proprietary Products bugs or errors that cause the breach of warranty, or (ii) if OpServices is unable to correct the OpServices Proprietary Products to operate as warranted, to provide Licensed with a refund of the License fees paid to OpServices during the then applicable License, upon removal of the OpServices Proprietary Products from the Designated System and Licensed’s return of the OpServices Proprietary Products to OpServices. OpServices shall have no obligation with respect to any warranty claim unless notified of such claim within the Warranty Period. The above warranty shall not apply: (i) if the OpServices Proprietary Products are used with components not supported in the Documentation;
(ii) if any additions or modifications to the OpServices Proprietary Products are made by Licensed or any third party; (iii) to defects in the OpServices Proprietary Products due to accident, abuse or improper use by Licensed; or (iv) to OpServices Proprietary Products provided on a no charge or evaluation basis.
8. Disclaimers
(a) EXCEPT FOR THE LIMITED WARRANTY SET FORTH IN SECTION 7 (LIMITED WARRANTY); THE OPSERVICES PRODUCTS IS PROVIDED TO LICENSED “AS IS.”
(b) THE WARRANTIES SET FORTH IN SECTION 7 (LIMITED WARRANTY) ARE GIVEN IN LIEU OF, AND LICENSED HEREBY WAIVES, ALL OTHER REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE OR ARISING FROM A COURSE OF DEALING OR USAGE OF TRADE. EXCEPT WITH RESPECT TO THE LIMITED WARRANTY SET FORTH IN 7 (LIMITED WARRANTY), LICENSED ASSUMES THE ENTIRE RISK ARISING OUT OF USE OR PERFORMANCE OF THE OPSERVICES PRODUCTS.
9. Indemnification
(a) Subject to the limitation set forth in Section 10 (Limitation of Liability), OpServices shall, during the period of a paid License, defend and indemnify, at its expense, any claim or suit brought by a third party against Licensed alleging that OpServices Proprietary Software infringes a U.S. patent, U.S. copyright, or U.S.trademark and shall pay all costs and damages finally awarded. OpServices’ indemnification obligations under this Section 9 a) are conditioned on Licensed giving OpServices: (i) prompt written notice of such claim or suit (but in any event notice in sufficient time for OpServices to respond without prejudice), (ii) Licensed’s reasonable assistance and (iii) the exclusive right to control and direct the investigation, defense and settlement (if applicable) of such claim.
(b) If Licensed’s Permitted Use of OpServices Proprietary Software under the terms of this Agreement is, or in OpServices opinion is likely to be, enjoined due to infringement, then OpServices will, at its sole option and expense, (i) obtain the right to continue using OpServices Proprietary Software, (ii) replace or modify the OpServices Proprietary Software so that it becomes non‐infringing, or (iii) if the remedies set forth in clauses (i) and (ii) are not available on a commercially reasonable basis, terminate the Agreement and refund to Licensed a pro‐rata portion of the Subscription fee paid by Licensed in respect of the applicable License Term, upon removal of the OpServices Proprietary Products from the Designated System and Licensed’s return of the OpServices Proprietary Products to OpServices.
(c) OpServices shall have no liability for actual or alleged infringement based upon the use of OpServices Proprietary Software outside the scope of the Permitted Use, in combination with other products, devices or software not furnished by OpServices, or arising out of modifications made to OpServices Proprietary Software by Licensed or any third party to the extent the claim or suit of infringement would not have occurred but for such combination or modification. OpServices disclaims all other liability for patent, trade secret and copyright and other intellectual property rights infringement, including any incidental, special or consequential damages.
(d) Consent for Internet-Based Services. The software features described here connect to OpServices or service provider computer systems over the Internet. In some cases, you will not receive a separate notice when they connect. In some cases, you may switch off these features or not use them. OpServices does not use the information to contact you.
(e) WITH RESPECT TO ANY CLAIMS OR ACTIONS RELATING TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS WITH REGARD TO THE OPSERVICES PRODUCTS OR THIS AGREEMENT, THE REMEDIES SET FORTH IN THIS SECTION 9 (INDEMNIFICATION) SHALL BE LICENSED’S SOLE AND EXCLUSIVE REMEDY AND OPSERVICES’S SOLE OBLIGATION.
10. Limitation of Liability
IN NO EVENT WILL OPSERVICES OR ITS SUPPLIERS BE LIABLE FOR ANY LOSS OF DATA, LOSS OF INCOME, LOSS OF OPPORTUNITY OR PROFITS, OR COST OF RECOVERY OR FOR ANY OTHER SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR INDIRECT DAMAGES ARISING FROM THE USE OF THE OPSERVICES PRODUCTS, ACCOMPANYING DOCUMENTATION, EXTENSIONS, THIRD PARTY SOFTWARE RELATED TO THE OPSERVICES PRODUCTS, SUPPORT SERVICES, OR PROFESSIONAL SERVICES HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY. THIS LIMITATION WILL APPLY EVEN IF OPSERVICES OR ITS SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL OPSERVICES LIABILITY EXCEED THE AGGREGATE AMOUNT PAID BY LICENSED TO OPSERVICES UNDER THIS AGREEMENT. LICENSED ACKNOWLEDGES AND AGREES THAT OPSERVICES’ FEES REFLECT THIS ALLOCATION OF RISK. THE PARTIES AGREE THAT THE LIMITATIONS SPECIFIED IN THIS SECTION 10 (LIMITATION OF LIABILITY) WILL SURVIVE AND APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THIS AGREEMENT IS FOUND TO HAVE FAILED ITS ESSENTIAL PURPOSE.
11. Miscellaneous Provisions
(a) Governing Law; Jurisdiction and Venue. This Agreement shall be governed by the laws of the State of Rio Grande do Sul and Brazil without regard to conflicts of laws provisions thereof, and without regard to the United Nations Convention on the International Sale of Goods. Unless waived by OpServices in its sole discretion, the jurisdiction and venue for actions arising out of and related to the subject matter hereof shall be the Rio Grande do Sul and Brazil federal courts located in Porto Alegre, RS, Brazil, and both parties hereby submit to the personal jurisdiction of such courts.
(b) Customer Reference. Licensed agrees that OpServices can use Licensed’s company name and logo in connection with marketing and promotions for OpServices.
(c) Assignment. This Agreement will bind and inure to the benefit of each party’s permitted successors. OpServices may assign this Agreement to any affiliate or to any assignee of all or substantially all of OpServices assets (whether pursuant to a merger, change of control or otherwise). Licensed may not assign or transfer this Agreement, in whole or in part, without OpServices’ prior written consent. Any attempt to transfer or assign this Agreement in violation of this Section will be null and void.
(d) 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.
(e) Entire Agreement. This Agreement is 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.
(f) Term. This Agreement is effective as of the Effective Date and expires on the day that the term of the last License for any OpServices Proprietary Software licensed hereunder expires. Either party may terminate this Agreement if the other party fails to cure any material breach of this Agreement within thirty (30) days after written notice of such breach. Termination is not an exclusive remedy, and the exercise by either party of any remedy under this Agreement will be without prejudice to any other remedies it may have under this Agreement, by law, or otherwise. Termination shall not relieve Licensed’s obligation to pay all fees that have accrued or are otherwise owed by Licensed, including any late payment fees.
(g) Termination. Upon any termination of this Agreement by OpServices pursuant to a material breach (Section 11(f)), Licensed shall cease any and all use of any OpServices Proprietary Software and destroy all copies thereof and so certify to OpServices in writing.
(h) Survival. Sections 2 (Definitions), 3 (Payment Terms), 4 (License Grant (but subject to Section 11(f)
above), 6 (Intellectual Property Ownership and Requirements), 8 (Disclaimers), 10 (Limitation of Liability) and 11 (Miscellaneous Provisions) shall survive any expiration or termination of this Agreement.
(i) Miscellaneous. Any notice or report hereunder shall be in writing to the notice address set forth above and shall be deemed given: (i) upon receipt if by personal delivery; (ii) upon receipt if sent by certified or registered mail (return receipt requested); or (iii) one day after it is sent if by next day delivery by a major commercial delivery service. The terms of this Agreement shall prevail over any conflicts with terms of a Licensed purchase order.
(j) Amendments; Waivers. No supplement, modification, or amendment of this Agreement shall be binding, unless executed in writing by a duly authorized representative of each party to this Agreement. 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 a writing signed by a duly authorized representative on behalf of the party claimed to have waived. No provision of any purchase order or other business form employed by Licensed will supersede the terms and conditions of this Agreement, and any such document relating to this Agreement shall be for administrative purposes only and shall have no legal effect.
