1. SAAS SERVICES AND SUPPORT
1.1 Subject to the terms of this Agreement, Octopi will use commercially reasonable efforts to provide Customer the Services. As part of the boarding process, Customer will establish an administrator user name and password for Customer’s Octopi account.
1.2 Subject to the terms hereof, Octopi will provide Customer with technical support services in accordance with Octopi’s then current Service Level Agreement (SLA).
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Octopi or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third; or remove any proprietary notices or labels.
2.2 Further, Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, or any direct product thereof in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority.
2.3 Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Octopi’s Acceptable Use Policy (the “Policy”) as defined in Section 10 and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Octopi against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Octopi has no obligation to monitor Customer’s use of the Services, Octopi may do so and may prohibit any use of the Services it believes may be in violation of the foregoing.
2.4 Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
Customer shall comply with all applicable statutes, regulations, ordinances and official governmental directives for protecting the privacy of Personally Identifiable Information (PII) in Customer Content. Octopi and Customer agree that (a) Customer shall not use the Services to store or transmit any Sensitive PII; (b) the provisions in this Agreement relating to PII shall not apply to any of such Sensitive PII; and (c) Octopi shall have no liability for disclosure of or failure to adequately secure or protect any Sensitive PII.
Each Party acknowledges that the other Party is the sole owner of its respective trade names, service marks, slogans, logos and other trademarks (the “Marks”), and nothing herein is intended to imply or grant a license or other rights to the counter Party with respect to such Marks, except as specifically agreed to herein or in writing by the owning Party. Customer hereby agrees that Octopi may display the Customer’s Marks on Octopi’s website.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Octopi includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Octopi to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three (3) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.2 Customer Ownership. Customer owns all rights, title and interest in and to Customer Data. During the Term, Customer grants Octopi a worldwide, non-exclusive, royalty-free, non-sublicensable and non-transferable right to access and use the Customer Data to provide the Service to Customer and to monitor and improve the Service. Customer may not have access to the Customer Data via the Service after the Term.
3.3 Derived Data. Octopi may collect, develop, create, extract, compile, synthesize, analyze and commercialize statistics, benchmarks, measures and other information based on Aggregated Data (collectively, “Derived Data”). Derived Data will be owned solely by Octopi and may be used for any lawful business purpose without a duty of accounting to Customer. “Aggregated Data” means Customer Data that is: (i) anonymized and not identifiable to any person or entity; (ii) combined with the data of other customers or additional data sources; and (iii) presented in a way which does not reveal Customer’s identity.
3.4 Feedback. If Customer provides Feedback, Customer grants to Octopi a worldwide, perpetual, irrevocable, sub-licensable, royalty-free, transferable license to use the Feedback in the Service and any intellectual property Octopi develops. “Feedback” means recommendations, suggestions, enhancement requests or other feedback or any ideas, technology, developments, derivative works or other intellectual property related to the Service or any services or products provided by Octopi.
3.5 Reservation of Rights. Octopi and its licensors reserve all right, title and interest in and to the Service, including all related intellectual property rights, subject to the limited rights expressly granted in this Agreement. No other rights are granted to Customer by this Agreement.
4. PAYMENT OF FEES
4.1 Customer will pay Octopi the then applicable fees described in the Order Form for the Services in accordance with the terms therein (the “Fees”). Octopi reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Octopi has billed Customer incorrectly, Customer must contact Octopi no later than sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
4.2 Customer may choose to be billed by a credit card or bank account on file with Octopi. In the event the credit card or bank account is rejected Octopi will contact the Customer for resolution. Any subsequent rejection of the credit card or bank account on file will result in the immediate suspension of the Services. Customer shall be responsible for all applicable sales & use taxes associated with Services other than U.S. taxes based on Octopi’s net income.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Octopi will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Octopi may, but is not obligated to, delete stored Customer Data. Sections 3, 6, 7, 8 and 9 of this Agreement will survive termination.
6. WARRANTY AND DISCLAIMER
Octopi shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Octopi or by third-party providers, or because of other causes beyond Octopi’s reasonable control, but Octopi shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, OCTOPI DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND OCTOPI DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Octopi shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided Octopi is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Octopi will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by Octopi, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Octopi, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Octopi to be infringing, Octopi may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, OCTOPI AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND OCTOPI’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO OCTOPI FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
9. ASSIGNMENT AND GOVERNING LAW
This Agreement is the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect. This Agreement may be assignable by either party with the prior written consent of the other Party which will not be unreasonably withheld. On a Party’s reasonable request, the other Party shall, at the requesting Party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, necessary to give full effect to this Agreement. This Agreement is for the sole benefit of the Parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or will confer upon any individual or entity any legal or equitable right, benefit, or remedy of any nature whatsoever, under or by reason of this Agreement. This Agreement will be governed exclusively by the laws of the State of Arizona without regard to its conflicts of laws rules. Any disputes arising out of or related hereto will be subject to the jurisdiction of the State Courts of Arizona with venue in Maricopa County, Arizona.
10. ACCEPTABLE USE POLICY
This Acceptable Use Policy (AUP) outlines certain actions prohibited by Octopi to users of the Services. The Service may only be used for lawful purposes and users of the Service may not violate any applicable local, state, federal or international laws that may apply to use of the Service in the user’s local jurisdiction, or any jurisdiction that the user may be subject to in connection with use of the Service. While using the Service, a user shall not, and shall not permit any other user or other person to:
- Restrict or inhibit any other user from using and enjoying the Internet;
- Post, publish, transmit, reproduce or distribute, or process through the Service or Octopi’s systems: a) any unlawful, threatening, abusive, libelous, defamatory, obscene, offensive, indecent, pornographic, profane, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense; b) any content that would give rise to civil liability; c) any Spam, and d) any Sensitive PII;
- Any content the distribution of which would violate laws protecting intellectual property including copyright, trademark, trade secret, misappropriation and anti-dilution laws;
- Any information or software, which contains a virus, malware, phishing content or other harmful component; or
- Any information, software, or other material obtained through the Service for commercial purposes (other than as expressly permitted by the provider of such information, software, or other material).
The user agrees not to maliciously or intentionally interfere with the proper operation of the Service or Octopi’s systems, including but not limited to defeating identification procedures, obtaining access beyond that which the user is authorized for, and impairing the availability, reliability, or quality of service for other users. The user further agrees not to use the Service in a manner that interferes with the proper operation of other systems reachable through the Internet, including any attempt at unauthorized access. The user agrees to adhere to the terms of this AUP.
INDIRECT OR ATTEMPTED VIOLATIONS OF THE POLICY, AND ACTUAL OR ATTEMPTED VIOLATIONS BY A THIRD PARTY ON BEHALF OF A USER OR THEIR END USER, SHALL BE CONSIDERED VIOLATIONS OF THE POLICY AND OCTOPI RESERVES THE RIGHT TO SUSPEND OR TERMINATE SERVICES IMMEDIATELY.