This Oort terms and conditions contains the terms and conditions that govern your access to and use of the Oort services (as defined below) and is an agreement between Oort (“we,” “us,” or “our”) and you or the entity you represent (“you” or“your”). This terms and conditions takes effect when you click an “I Accept”button or check box presented with these terms or, if earlier, when you use any of the Oort services (the “Effective Date”). You represent to us that you are lawfully able to enter into contracts (e.g., you are not a minor). If you are entering into this terms and conditions for an entity, such as the company you work for, you represent to us that you have legal authority to bind that entity. Please see Section 14 for definitions of certain capitalized terms used in this terms and conditions.
The Oort services is open to all users worldwide. It is important for you to carefully read the terms and conditions before making any decision. If you do not agree with the terms and conditions or if you are not lawfully able to enter into contracts, then you are not permitted to use Oort services.
1. Use of the Oort services.
1.1 Generally. You may access and use the Oort services in accordance with this terms and conditions. You will comply with the terms and conditions and all laws, rules and regulations applicable to your use of the Oort services.
1.2 Your Account. To access the Oort services, you must have an Oort account associated with a valid email address and a valid form of payment. Unless explicitly permitted by the terms and conditions, you will only create one account per email address.
1.3 Third-Party Content. Third-Party Content may be used by you at your election. Third-Party Content is governed by this terms and conditions and, if applicable, separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges.
2. Security and Data Privacy.
2.1 Security. Without limiting Section 10 or your obligations under Section 4.2, we will implement reasonable and appropriate measures designed to help you secureYour Content against accidental or unlawful loss, access or disclosure.
2.2 Data Privacy. You may specify the regions in which Your Content will be stored. You consent to the storage of YourContent in, and transfer of Your Content into, the regions you select. We will not access or use Your Content except as necessary to maintain or provide the Oort services, or as necessary to comply with the law or a binding order of a governmental body. We will not (a) disclose Your Content to any government or third party or (b) move Your Content from the regions selected by you; except in each case as necessary to comply with the law or a binding order of a governmental body. Unless it would violate the law or a binding order of a governmental body, we will give you notice of any legal requirement or order referred to in this Section
2.3. We will only use your Account Information in accordance with the Privacy Notice, and you consent to such usage. The Privacy Notice does not apply to Your Content.
3. Your Responsibilities.
3.1 Your Accounts. Except to the extent caused by our breach of this terms and conditions, (a) you are responsible for all activities that occur under your account, regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party(including your contractors, agents or End Users), and (b) we and our affiliates are not responsible for unauthorized access to your account.
3.2 Your Content. You will ensure that YourContent and your and End Users’ use of Your Content or the Oort services will not violate any of the Policies or any applicable law. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.
3.3 Your Security and Backup. You are responsible for properly configuring and using the Oort services and otherwise taking appropriate action to secure, protect and backup your accounts and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
3.4 Log-In Credentials and Account Keys. Oort services log-in credentials and private keys generated are for your internal use only and you will not sell, transfer or sublicense them to any other entity or person, except that you may disclose your private key to your agents and subcontractors performing work on your behalf.
3.5 End Users. You will be deemed to have taken any action that you permit, assist or facilitate any person or entity to take related to this terms and conditions, Your Content or use of the Oort services. You are responsible for End Users’ use of Your Content and the Oort services. You will ensure that all End Users comply with your obligations under this terms and conditions and that the terms of your agreement with each End User are consistent with this terms and conditions. If you become aware of any violation of your obligations under this terms and conditions caused by an End User, you will immediately suspend access to Your Content and the Oort services by such End User. We do not provide any support or services to End Users unless we have a separate agreement with you or an End User obligating us to provide such support or services.
4. Fees and Payment.
4.1 Taxes. Each party will be responsible, as required under applicable law, for identifying and paying all taxes and other governmental fees and charges (and any penalties, interest, and other additions there to) that are imposed on that party upon or with respect to thetransactions and payments under this terms and conditions. All fees payable by you are exclusive of Indirect Taxes, except where applicable law requires otherwise.We may charge and you will pay applicable Indirect Taxes that we are legally obligated or authorized to collect from you. You will provide such information to us as reasonably required to determine whether we are obligated to collectIndirect Taxes from you. We will not collect, and you will not pay, anyIndirect Tax for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption from such Indirect Tax. All payments made by you to us under this terms and conditions will be made free and clear of any deduction or withholding, as may be required by law. If any such deduction or withholding(including but not limited to cross-border withholding taxes) is required on any payment, you will pay such additional amounts as are necessary so that the net amount received by us is equal to the amount then due and payable under this terms and conditions. We will provide you with such tax forms as are reasonably requested in order to reduce or eliminate the amount of any withholding or deduction for taxes in respect of payments made under this terms and conditions.
5. Temporary Suspension.
5.1 Generally. We may suspend your or any EndUser’s right to access or use any portion or all of the Oort services immediately upon notice to you if we determine:
(b) you are, or any End User is, in breach of this terms and conditions;
(c) you are in breach of your payment obligations under Section 5; or
(d) you have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution or similar proceeding.
5.2 Effect of Suspension. If we suspend your right to access or use any portion or all of the Oort services:
(a) you remain responsible for all fees and charges you incur during the period of suspension; and
(b) you will not be entitled to any service credits for any period of suspension.
6. Proprietary Rights.
6.1 Your Content. Except as provided in thisSection 8, we obtain no rights under this terms and conditions from you (or your licensors) to Your Content. You consent to our use of Your Content to provide the Oort services to you and any End Users.
6.2 Adequate Rights. You represent and warrant to us that: (a) you or your licensors own all right, title, and interest in and to Your Content and Suggestions; (b) you have all rights in Your Content andSuggestions necessary to grant the rights contemplated by this terms and conditions; and (c) none of Your Content or End Users’ use of Your Content or the Service Offerings will violate the Acceptable Use Policy.
6.3 Intellectual Property License. TheIntellectual Property License applies to your use of Oort services.
6.4 Restrictions. Neither you nor any End User will use the Oort services in any manner or for any purpose other than as expressly permitted by this terms and conditions. Neither you nor any EndUser will, or will attempt to (a) reverse engineer, disassemble, or decompile the Oort or apply any other process or procedure to derive the source code of any software included in the Oort services (except to the extent applicable law doesn’t allow this restriction), (b) access or use the Oort services in a way intended to avoid incurring fees or exceeding usage limits or quotas, or (c) resell the Oort services. The Oort Trademark Guidelines apply to your use of the Oort services. You will not misrepresent or embellish the relationship between us and you(including by expressing or implying that we support, sponsor, endorse, or contribute to you or your business endeavors). You will not imply any relationship or affiliation between us and you except as expressly permitted by this terms and conditions.
6.5 Suggestions. If you provide anySuggestions to us or our affiliates, we and our affiliates will be entitled to use the Suggestions without restriction. You hereby irrevocably assign to us all right, title, and interest in and to the Suggestions and agree to provide us any assistance we require to document, perfect, and maintain our rights in the Suggestions.
7.1 General. You will defend, indemnify, and hold harmless us, our affiliates and licensors, and each of their respective employees, officers, directors, and representatives from and against any Losses arising out of or relating to any third-party claim concerning: (a) your or anyEnd Users’ use of the Oort services (including any activities under your account and use by your employees and personnel); (b) breach of this terms and conditions or violation of applicable law by you, End Users or YourContent; or (c) a dispute between you and any End User. You will reimburse us for reasonable attorneys’ fees, as well as our employees’ and contractors’ time and materials spent responding to any third party subpoena or other compulsory legal order or process associated with third party claims described in (a)through (c) above at our then-current hourly rates.
7.2 Intellectual Property.
(a) Subject to the limitations in this Section9, you will defend Oort, its affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(b) Oort will not have obligations or liability under this Section 9.2 arising from infringement by combinations of the Oort services or Your Content, as applicable, with any other product, service, software, data, content or method. In addition, Oort will have no obligations or liability arising from your or any End User’s use of the Oort services after Oort has notified you to discontinue such use. The remedies provided in this Section 7.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Oort services or by Your Content.
(c) For any claim covered by Section 7.2(a),Oort will, at its election, either: (i) procure the rights to use that portion of the services alleged to be infringing; (ii) replace the alleged infringing portion of the services with a non-infringing alternative; (iii)modify the alleged infringing portion of the services to make it non-infringing; or (iv) terminate the allegedly infringing portion of the services or this terms and conditions.
7.3 Process. The obligations under thisSection 9 will apply only if the party seeking defense or indemnity: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim; and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.
THE OORT SERVICES ARE PROVIDED “ASIS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OFANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE OORT SERVICES OR THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
9. Limitations of Liability.
WE AND OUR AFFILIATES AND LICENSORS WILL NOTBE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OREXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS,OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THEPOSSIBILITY OF SUCH DAMAGES. FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES ORLICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGESARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE SERVICES, INCLUDINGAS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS TERMS AND CONDITIONSOR YOUR USE OF OR ACCESS TO THE OORT SERVICES, (II) OURDISCONTINUATION OF ANY OR ALL OF THE OORTCES, OR, (III) WITHOUTLIMITING ANY OBLIGATIONS UNDER THE TERMS AND CONDITIONS, ANY UNANTICIPATED ORUNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR ANY REASON; (B)THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; (C) ANY INVESTMENTS,EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS TERMS ANDCONDITIONS OR YOUR USE OF OR ACCESS TO THE OORT SERVICES; OR (D) ANYUNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE,LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. IN ANY CASE, EXCEPTFOR PAYMENT OBLIGATIONS UNDER SECTION 9.2, OUR AND OUR AFFILIATES’ ANDLICENSORS’ AGGREGATE LIABILITY UNDER THIS TERMS AND CONDITIONS WILL NOT EXCEEDTHE AMOUNT YOU ACTUALLY PAY US UNDER THIS TERMS AND CONDITIONS FOR THE SERVICETHAT GAVE RISE TO THE CLAIM DURING THE 1 2MONTHS BEFORE THE LIABILITY AROSE. THE LIMITATIONS IN THIS SECTION 11 APPLYONLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10.1 Assignment. You will not assign or otherwise transfer this terms and conditions or any of your rights and obligations under this terms and conditions, without our prior written consent.Any assignment or transfer in violation of this Section 13.1 will be void. We may assign this terms and conditions without your consent (a) in connection with a merger, acquisition or sale of all or substantially all of our assets, or (b) to any affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for Oort as a party to this terms and conditions and Oort is fully released from all of its obligations and duties to perform under this terms and conditions.Subject to the foregoing, this terms and conditions will be binding upon, and inure to the benefit of the parties and their respective permitted successors and assigns.
10.2 Entire Agreement. This Agreement incorporates the Policies by reference and is the entire agreement between you and us regarding the subject matter of this Agreement. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between you and us, whether written or verbal, regarding the subject matter of this terms and conditions. We will not be bound by, and specifically object to, any term, condition or other provision that is different from or in addition to the provisions of this terms and conditions(whether or not it would materially alter this terms and conditions) including for example, any term, condition or other provision (a) submitted by you in any order, receipt, acceptance, confirmation, correspondence or other document, (b)related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaire, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this document are inconsistent with the terms contained in any Policy, the terms contained in this document will control.
10.3 Force Majeure. We and our affiliates will not be liable for any delay or failure to perform any obligation under this terms and conditions where the delay or failure results from any cause beyond our reasonable control, including acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
10.4 Governing Law. The terms and conditions shall be governed by, and construed in accordance with, the internal laws of the State of New York without giving effect to any choice or conflict of law provision or rule (whether of the State of New York or any other jurisdiction)that would cause the application of laws of any jurisdiction other than those of the State of New York.
Any legal suit, action or proceeding arising out of, or related to, this terms and conditions or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of New York, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non convenient. Service of process, summons, notice or other document by mail to such Party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
We and you agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. We and you waive any right to a jury trial. Notwithstanding the foregoing we and you both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
10.5 Trade Compliance. In connection with this terms and conditions, each party will comply with all applicable import, re-import, sanctions, anti-boycott, export, and re-export control laws and regulations, including all such laws and regulations that apply to a U.S.company, such as the Export Administration Regulations, the InternationalTraffic in Arms Regulations, and economic sanctions programs implemented by theOffice of Foreign Assets Control. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the Oort services, including your transfer and processing of Your Content, the provision of Your Content to End Users, and the region in which any of the foregoing occur. You represent and warrant that you and your financial institutions, or any party that owns or controls you or your financial institutions, are not subject to sanctions or otherwise designated on any list of prohibited or restricted parties, including but not limited to the lists maintained by theUnited Nations Security Council, the U.S. Government (e.g., the SpeciallyDesignated Nationals List and Foreign Sanctions Evaders List of the U.S.Department of Treasury, and the Entity List of the U.S. Department of Commerce),the European Union or its Member States, or other applicable government authority.
10.6 Independent Contractors; Non-Exclusive Rights. We and you are independent contractors, and this terms and conditions will not be construed to create a partnership, joint venture, agency, or employment relationship. Neither party, nor any of their respective affiliates, is an agent of the other for any purpose or has the authority to bind the other. Both parties reserve the right (a) to develop or have developed for it products, services, concepts, systems, or techniques that are similar to or compete with the products, services, concepts, systems, or techniques developed or contemplated by the other party, and (b) to assist third party developers or systems integrators who may offer products or services which compete with the other party’s products or services.
10.7 Language. All communications and notices made or given pursuant to this terms and conditions must be in the English language. If we provide a translation of the English language version of this terms and conditions, the English language version of the terms and conditions will control if there is any conflict.
10.8 Confidentiality and Publicity. You may use Oort Confidential Information only in connection with your use of the Oort services as permitted under this terms and conditions. You will not disclose Oort Confidential Information during the Term or at any time during the 5-year period following the end of the Term. You will take all reasonable measures to avoid disclosure, dissemination or unauthorized use of Oort Confidential Information, including, at a minimum, those measures you take to protect your own confidential information of a similar nature. You will not issue any press release or make any other public communication with respect to this terms and conditions or your use of the Oort services.
10.9 No Third-Party Beneficiaries. Except as set forth in Section 9, this terms and conditions does not create any third-party beneficiary rights in any individual or entity that is not a party to this terms and conditions.
10.10 U.S. Government Rights. If you are using the Oort services on behalf of the U.S. Government, our services will be provided as “commercial items,” “commercial computer software,” “commercial computer software documentation,” and “technical data” with the same rights and restrictions generally applicable to the Oort services. If these terms fail to meet the U.S. Government’s needs or are inconsistent in any respect with federal law, you will immediately discontinue your use of the Oort services. The terms “commercial item” “commercial computer software,” “commercial computer software documentation,” and “technical data” are defined in the Federal Acquisition Regulation and the Defense Federal Acquisition Regulation Supplement.
10.11 No Waivers. The failure by us to enforce any provision of this terms and conditions will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers by us must be in writing to be effective.
10.12 Severability. If any portion of this terms and conditions is held to be invalid or unenforceable, the remaining portions of this terms and conditions will remain in full force and effect. Any invalid or unenforceable portions will be interpreted to effect and intent of the original portion. If such construction is not possible, the invalid or unenforceable portion will be severed from this terms and conditions but the rest of the terms and conditions will remain in full force and effect.
“Account Information” means information about you that you provide to us in connection with the creation or administration of your Oort account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your Oort account.
“API” means an application program interface.
“Oort Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners, or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential. Oort Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs; (b) third-party information that we are obligated to keep confidential; and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates. Oort Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this terms and conditions; (ii) can be shown by documentation to have been known to you at the time of your receipt from us; (iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act; or (iv) can be shown by documentation to have been independently developed by you without reference to the Oort Confidential Information.
“Oort Content” means Content that we or any of our affiliates make available in connection with the services or on the Oort Site to allow access to and use of the Oort services, including APIs; sample code; software libraries; command line tools; proofs of concept; templates; and other related technology (including any of the foregoing that are provided by our personnel). Oort Content does not include the services or Third-Party Content.
“Oort Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Oort and its affiliates that we may make available to you in connection with this terms and conditions.
“Oort Site” means www.oortech.com/terms (and any successor or related locations designated by us), as may be updated by us from time to time.
“Oort Trademark Guidelines” means the guidelines and trademark license as may be updated by us from time to time.
“Content” means software (including machine images), data, text, audio, video, or images.
“End User” means any individual or entity that directly or indirectly through another user (a) accesses or uses Your Content, or (b) otherwise accesses or uses the Oort services under your account. The term “End User” does not include individuals or entities when they are accessing or using the services or any Content under their own Oort account, rather than under your account.
“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, service tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.
“Intellectual Property License” means the separate license terms that apply to your access to and use of Oort content and services as may be updated by us from time to time.
“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).
“Policies” means the Acceptable Use Policy, Privacy Notice, the Site Terms, the Service Terms, the Oort Trademark Guidelines, all restrictions described in the Oort Content and on the Oort Site, and any other policy or terms referenced in or incorporated into this terms and conditions, but does not include white papers or other marketing materials referenced on the Oort Site.
“Privacy Notice” means the privacy notice located as may be updated by us from time to time.
“Service” means each of the services made available by us or our affiliates, including those web services described in the Service Terms. Services do not include Third-Party Content.
“Service Terms” means the rights and restrictions for services as may be updated by us from time to time.
“Suggestions” means all suggested improvements to the Oort services that you provide to us.
“Term” means the term of this terms and conditions described in Section 7.1.
“Third-Party Content” means Content made available to you by any third party on the Oort Site or in conjunction with the services.
“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the services in connection with your Oort account and any computational results that you or any End User derive from the foregoing through their use of the services. Your Content does not include Account Information.