Terms of Service

OPSANALITICA SERVICES AND SUPPORT

  1. Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services in accordance with this agreement. As part of the registration process, Customer will identify an administrative user name and password for Customer’s Company account. Company reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
  2. Subject to the terms hereof, Company will provide Customer with reasonable technical support services in accordance with the terms set forth below under “Support Terms”.

RESTRICTIONS AND RESPONSIBILITIES

  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 Company 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 party; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, Company hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services.
  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. As defined in FAR section 2.101, the Software and documentation are “commercial items” and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
  3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with Company’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless Company 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 Company has no obligation to monitor Customer’s use of the Services, Company may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
  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.

CONFIDENTIALITY; PROPRIETARY RIGHTS

  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 Company includes non-public information regarding features, functionality and performance of the Service. Proprietary Information of Customer includes non-public data provided by Customer to Company 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 five (5) 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.
  2. Customer shall own all right, title and interest in and to the Customer Data. Company shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
  3. Notwithstanding anything to the contrary, Company shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Company will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Company offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.

PAYMENT OF FEES

  1. Customer will pay Company the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. Company 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 Company has billed Customer incorrectly, Customer must contact Company no later than 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. Inquiries should be directed to Company’s customer support department.
  2. Company may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Company fifteen (15) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on Company’s net income.

TERM AND TERMINATION

  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.
  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, Company will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Company may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.

WARRANTY AND DISCLAIMER

Company shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform the Implementation Services in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Company or by third-party providers, or because of other causes beyond Company’s reasonable control, but Company shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, COMPANY 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 COMPANY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

LIMITATION OF LIABILITY

NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COMPANY 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 COMPANY’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COMPANY FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

MISCELLANEOUS

If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Company’s prior written consent. Company may transfer and assign any of its rights and obligations under this Agreement without consent. 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, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Neither party has any authority of any kind to bind the other party in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of Colorado without regard to its conflict of laws provisions. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Effective Date, and Customer otherwise agrees to reasonably cooperate with Company to serve as a reference account upon request.

Support Terms

Company will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00 am through 5:00 pm Mountain time, with the exclusion of Federal Holidays (“Support Hours”).

Customer may initiate a helpdesk ticket through 24/7 online chat within the app or at https://intercom.help/opsanalitica/en/.

Company will use commercially reasonable efforts to respond to all Helpdesk tickets within one (1) business day.

OpsAnalitica Developer Agreement

Introduction

This OpsAnalitica Developer Agreement (“Agreement”) is a legally binding contract between you and OpsAnalitica, LLC (“OpsAnalitica”). If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), you are agreeing to this Agreement for that Entity and you represent that you have the authority to bind such Entity to this Agreement, in which case the terms “You” or “Your” shall refer to such Entity. If you do not agree to be bound by the terms of this Agreement, do not proceed with using the service.

Registration and Acceptance into the Developer Platform

To access the Developer Platform, you must request access from OpsAnalitica. You will be provided access to the Developer Platform subject to review of the information provided by you and will be at OpsAnalitica’s sole and absolute discretion.

Developer Tools

You will have access to APIs, access tokens, and documentation (“Developer Tools”). Using the Developer Tools, you can build applications, extensions and integrations (“Applications”).

Subject to the terms and conditions set forth herein, OpsAnalitica grants to you a revocable, non – transferable, non – exclusive and non – sublicenseable limited license to use the Developer Tools to create the Applications. If there are license terms accompanying specific Developer Tools, such license terms shall apply and to the extent there is any conflict with the terms herein, such accompanying license terms shall control.

OpsAnalitica Independent Development

You understand and acknowledge that OpsAnalitica may be independently creating features, applications, content, or other products or services that may be similar to or competitive with your Applications and nothing in this Agreement will be construed as restricting or preventing OpsAnalitica from doing so.

Pre-Release Materials

From time to time, you will have access to pre-release products and technology (“Pre-release Materials”). Pre-release Materials are provided “as is,” exclusive of any warranty or support, and may contain bugs or errors. Pre-release Materials are provided for evaluation and testing purposes and are not intended for production use, may never be made generally available, and may be discontinued at any time. No rights in the Pre-release Materials are granted to you hereunder other than as expressly set forth herein.

You agree not to (i) decompile or disassemble the Pre-release Materials, and (ii) rent, lease, license, sublicense or distribute the Pre-Release Materials.

Ownership and Feedback

OpsAnalitica owns all rights, title, and interest, including all intellectual property rights in the Developer Platform, Developer Tools, Pre-release Materials, OpsAnalitica Services, OpsAnalitica Trademarks and all related technology, websites and content (collectively, the “OpsAnalitica Materials”). Except for the limited use right expressly granted to you under this Agreement, OpsAnalitica does not grant you any right, title, or interest in the OpsAnalitica Materials. You retain ownership of any intellectual property rights in your Applications, subject to OpsAnalitica’s rights in any underlying OpsAnalitica Materials.

You may provide OpsAnalitica with comments concerning the Applications, Developer Platform, Pre-release Materials or OpsAnalitica Marketplace (collectively, “Feedback”). You hereby grant OpsAnalitica all rights, title and ownership of such Feedback (including all intellectual property rights therein), and OpsAnalitica may use the Feedback for any and all commercial and non-commercial purposes with no obligation of any kind to you.

Your Representations and Warranties

You are solely responsible for (i) your use of the Development Platform, and (ii) your Applications. You represent and warrant that: (a) you have full power and authority to enter into this Agreement; (b) your Application will not violate any third party rights (including intellectual property rights and rights of privacy or publicity) or any laws, rules, regulations or orders; (c) all information you provide to OpsAnalitica is and will be true, accurate and complete; and (d) your Application will not transmit any viruses, worms, malware or other harmful code.

Customer Data

You understand that the Applications are hosted and any associated data are stored on OpsAnalitica’s servers according to OpsAnalitica’s Privacy Policy. However, data may be stored on the servers of a third party where an Application incorporates a connector to such third party’s applications. You shall not attempt to copy any customer’s data or divert it to any third party without the explicit consent of the customer.

Trademarks

Your use of any of OpsAnalitica’s trademarks, logos or trade names (collectively, “OpsAnalitica Marks”) must comply with the any guidelines published by OpsAnalitica with respect to use of the OpsAnalitica Marks. You may not modify or alter the OpsAnalitica Marks or use them in a confusing way, including without limitation suggesting any sponsorship or endorsement by OpsAnalitica. You may not use the OpsAnalitica Marks, or any part thereof, as part of your company name, trademarks or service marks. OpsAnalitica may terminate your license to use the OpsAnalitica Marks at any time for any or no reason.

Disclaimer of Warranties

THE OPSANALITICA MATERIALS ARE PROVIDED “AS IS” AND “WITH ALL FAULTS”. OPSANALITICA AND ITS THIRD PARTY LICENSORS DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND GUARANTEES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT AND FITNESS FOR ANY PURPOSE. OPSANALITICA MAKES NO REPRESENTATION, WARRANTY OR GUARANTEE (A) RELATED TO RELIABILITY, ACCURACY, OR COMPLETENESS OF THE OPSANALITICA MATERIALS, (B) THAT OPSANALITICA WILL CONTINUE TO OFFER THE DEVELOPER MATERIALS OR (C) THAT USE OF ANY OPSANALITICA MATERIALS WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE OR MEET YOUR REQUIREMENTS OR EXPECTATIONS.

Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, OPSANALITICA WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY LOSS OF PROFITS OR REVENUES, WHETHER INCURRED DIRECTLY OR INDIRECTLY, OR ANY LOSS OF DATA, USE, GOOD-WILL, OR OTHER INTANGIBLE LOSSES. IN NO EVENT WILL OpsAnalitica’S AGGREGATE LIABILITY FOR ALL CLAIMS RELATED TO THE OPSANALITICA MATERIALS EXCEED THE GREATER OF ONE HUNDRED U.S. DOLLARS (U.S. $100.00).

Indemnification

You agree to indemnify and hold harmless OpsAnalitica, its officers, directors, employees, suppliers, and affiliates, from and against any losses, damages, fines and expenses (including attorney’s fees and costs) arising out of or relating to any claims that you have used the Developer Platform in violation of another party’s rights, in violation of any law, in violations of any provisions of this Agreement, or any other claim related to your use of the Developer Platform, except where such use is authorized by OpsAnalitica.

Confidentiality

You may be given access to certain non-public information, software, and specifications (“OpsAnalitica Confidential Information”), which is confidential and proprietary to OpsAnalitica. “OpsAnalitica Confidential Information” includes, without limitation: (a) Pre-release Materials; and (b) any other information designated in writing by OpsAnalitica as “Confidential” or an equivalent designation.

You may use OpsAnalitica Confidential Information only as necessary in exercising your rights granted in this Agreement. You agree not to disclose OpsAnalitica Confidential Information without OpsAnalitica’s prior written consent. You agree that You will protect OpsAnalitica Confidential Information from unauthorized use, access, or disclosure in the same manner that you would protect your own confidential and proprietary information of a similar nature and in any event with no less than a reasonable degree of care.

Changes

We may modify the Agreement upon notice to you at any time through a service announcement or by sending email to your primary email address. If we make significant changes to this Agreement that affect your rights, you will be provided with at least 30 days advance notice of the changes by email to your primary email address.

You may terminate your use of the Developer Platform by providing OpsAnalitica notice by email within 30 days of being notified of the availability of the modified Agreement if the Agreement is modified in a manner that substantially affects your rights in connection with use of the Developer Platform. Your continued use of the Developer Platform after the effective date of any change to the Agreement will be deemed to be your acceptance to the modified Agreement.

Term and Termination

This Agreement will remain in effect until terminated. You may terminate this Agreement at any time by providing written notice to OpsAnalitica or by ceasing use of and/or access to the Developer Platform. OpsAnalitica may terminate this Agreement for any reason or no reason upon ten (10) days’ notice to you. OpsAnalitica may also suspend your use of the Developer Platform or terminate this Agreement immediately if you breach this Agreement, if OpsAnalitica is required to do so by Law or if OpsAnalitica ceases to offer the Developer Platform. You understand that after termination you will have no further access to the Development Platform or any Developer Tools, and you must delete any OpsAnalitica Confidential Information in your possession. OpsAnalitica will not be liable to you for any costs, expenses, or damages as a result of the termination of this Agreement.

Arbitration

Any controversy or claim arising out of or relating to this Agreement shall be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any claim or controversy of any other party. The decision of the arbitrator shall be final and unappealable. The arbitration shall be conducted in Colorado and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Notwithstanding anything to the contrary, OpsAnalitica may at any time seek injunctions or other forms of equitable relief from any court of competent jurisdiction.

General

This Agreement constitutes the entire agreement between you and OpsAnalitica with respect to its subject matter and supersedes and merges all prior proposals, understandings and communications. Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties hereto. You may not assign, transfer or delegate any right or obligations under this Agreement and any non-permitted assignment is void. OpsAnalitica may assign this Agreement and its rights and obligations to any of its affiliates or in connection with a merger, reorganization, acquisition or other transfer of all or substantially all of its assets or voting securities to which this Agreement relate. This Agreement does not create or imply any partnership, agency or joint venture.

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