These OSF Software Terms (“Terms”) appliesto any executed Order Form between the entity set forth on the applicable Order Form (“you”)
and OSF Global Services Inc. or the applicable OSF Affiliate listed on the Order Form (“OSF”). References to this “Agreement” refer to these
Terms and the applicable Order Form. These Terms only gives you some rights to use the Software. OSF reserves all other rights. Each Order
Form is solely between you and the OSF entity listed on the Order Form.
1. Definitions
1.1. “Affiliate” means, with respect to any entity, any other
entity which directly or indirectly controls, is controlled by or is
under common control with such entity.
1.2. “Documentation” shall mean OSF’s standard user manuals
and/or related documentation generally made available to
licensees of the Software, as amended by OSF from time to time.
1.3. “Free Software” means Software that OSF licenses to you at
no charge.
1.4. "License Key" means the data used by the Software's access
control mechanism that allows you to install, operate, and use
the Software.
1.5. “Non-OSF Apps” are software applications, extensions,
services or other functionality, whether web-based, mobile,
offline or otherwise, that are provided by you or a third party
that interoperate with the Software.
1.6. “Order Form” means an order form specifying the Software
to be provided hereunder that is entered into between you or
your Affiliates and OSF or any of its Affiliates.
1.7. “Software” shall mean the executable, object code
version(s) of OSF’s proprietary software product(s) ordered and
paid for by you pursuant to an Order Form, together with any
updates, patches, upgrades, modifications, fixes and
enhancements provided to you, and any complete or partial
copies thereof permitted to be made by this Agreement.
1.8. “Subscription Term” means the period specified in the
Order Form.
1.9. “Third Party Software” is software, including open source
software, that is contained in or provided with the Software and
is licensed by a third party under its own terms of use (“Third
Party Terms”).
2. License.
2.1. Grant. Subject to the terms and conditions of this
Agreement, OSF grants you a limited, worldwide, nontransferable, non-sublicensable, non-exclusive license during
the applicable Subscription Term to use the Software in
accordance with the Documentation and this Agreement. All
Software and Documentation will be delivered electronically
unless otherwise specified on the applicable Order Form.
2.2. License Restrictions. Except as expressly permitted by law
or by applicable third-party license, you must not and must not
allow any third party to: (i) sublicense, sell, rent, lease, transfer,
assign, or distribute the Software; (ii) host the Software for the
benefit of third parties; (iii) disclose or permit any third party to
access the Software, except for a third party working on your
behalf, provided you ensure such third parties comply with this
Agreement and do not use the Software for their own benefit;
(iv) hack or modify the License Key, or avoid or change any
license registration process; (vi) disassemble, decompile, or otherwise reverse engineer the Software or attempt to derive
any of its source code, in whole or in part; (vi) modify, obscure,
or delete any proprietary rights notices included in or on the
Software or Documentation; (vii) use the Software in a way that
has a detrimental impact on OSF’s ability to provide Software to
their other customers; or (vii) otherwise use the Software in a
manner not expressly permitted by this Agreement.
2.3. Third Party Software. The Software may include or utilize
Third Party Software. Third Party Software is governed solely by
the applicable Third Party Terms and not by these Terms. For
certain open source software, the applicable Third Party Terms
may entitle you to obtain source files, as further described in the
Documentation or other locations that OSF may specify.
2.4. Non-OSF Apps. The Software may contain features designed
to interoperate with Non-OSF Apps. If you enable, access or use
any Non-OSF App, the following apply: (a) your use of each NonOSF App is subject to the applicable terms between you and the
Non-OSF App provider, and you will comply with those terms; (b)
any exchange of data or other information between you and any
Non-OSF App you use is solely between you and the applicable
third-party provider; (c) OSF does not warrant or support NonOSF Apps or other third-party products or services; and (d) you
will be responsible for the interoperation of any Non-OSF App
with your use of the Software. OSF does not guarantee the
continued availability of any Non-OSF App or related features,
and may cease providing without entitling you to any refund,
credit, or other compensation, if for example and without
limitation, the provider of a Non-OSF App ceases to make the
Non-OSF App available for interoperation with the Software in a
manner acceptable to OSF. Use of your data by the Non-OSF App
is governed by your agreement with the Non-OSF App provider.
OSF is not responsible for any disclosure, modification, use or
deletion of your data or other information resulting from any
such access by Non-OSF Apps or their provider(s).
2.5. No Support. Unless otherwise set forth in a separate
services agreement, OSF will not provide and is in no way
required to provide any support, maintenance, or other services
in connection with the Software, and Customer is solely
responsible for implementing and testing the Software.
2.6. Free Software. OSF may make Free Software available to
you. Use of Free Software is subject to the terms and conditions
of this Agreement. In the event of a conflict between this section
and any other portion of this Agreement, this section shall
control. Free Software is provided to you without charge up to
certain limits as described in the Documentation. You agree that
OSF, in its sole discretion and for any or no reason, may
terminate your license to any or all Free Software, with or
without prior notice and without any liability. Free Software may
be licensed on a trial basis free of charge until the earlier of (a)
the start date of any Subscription Term for such Software, or (b)
termination by OSF in its sole discretion. Additional trial terms
and conditions may appear in the Documentation. Any such
additional terms and conditions are incorporated into this
Agreement by reference and are legally binding.
NOTWITHSTANDING THE “LIMITED WARRANTY” SECTION AND
“INDEMNIFICATION BY OSF” SECTION BELOW, DURING THE FREE
TRIAL THE SOFTWARE IS PROVIDED “AS-IS” WITHOUT ANY
WARRANTY AND OSF SHALL HAVE NO INDEMNIFICATION
OBLIGATIONS NOR LIABILITY OF ANY TYPE FOR THE FREE TRIAL
PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT
ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE OSF’S
LIABILITY WITH RESPECT TO THE SOFTWARE PROVIDED DURING
THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT
LIMITING THE FOREGOING, OSF AND ITS AFFILIATES AND ITS
LICENSORS DO NOT REPRESENT OR WARRANT THAT YOUR USE
OF THE SOFTWARE DURING THE FREE TRIAL PERIOD WILL MEET
YOUR REQUIREMENTS OR BE UNINTERRUPTED, TIMELY, SECURE
OR FREE FROM ERROR. NOTWITHSTANDING ANYTHING TO THE
CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW,
YOU ARE FULLY LIABLE UNDER THIS AGREEMENT TO OSF AND
ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF YOUR USE
OF THE SOFTWARE DURING THE FREE TRIAL PERIOD.
3. Confidentiality and Intellectual Property.
3.1. Ownership. The Software is licensed, not sold.
Notwithstanding anything to the contrary contained herein,
except for the limited license rights expressly provided herein,
OSF and its licensors have and will retain all rights, title and
interest (including, without limitation, all intellectual property
rights) in and to the Software, Documentation, and all copies,
modifications and derivative works thereof (including any
changes which incorporate any of your ideas, feedback or
suggestions). You acknowledge that you are obtaining only a
limited license right to the Software and that irrespective of any
use of the words “purchase”, “sale” or like terms hereunder no
ownership rights are conveyed to you under this Agreement.
3.2. Feedback. To the extent you provide OSF with feedback
related to the Software, you grant OSF and its Affiliates a
worldwide, perpetual, irrevocable, royalty-free license to use,
distribute, disclose, and make and incorporate into its services
any suggestion, enhancement request, recommendation,
correction or other feedback related to the Software.
3.3. Restrictions. Each party agrees that all code, inventions,
know-how, business, technical and financial information it
obtains (“Receiving Party”) from the disclosing party (“Disclosing
Party”) constitute the confidential property of the Disclosing
Party (“Confidential Information”), provided that it is identified
as confidential at the time of disclosure or should be reasonably
known by the Receiving Party to be Confidential Information due
to the nature of the information disclosed and the circumstances
surrounding the disclosure. Any software (including Software),
pricing, documentation or technical information provided by
OSF (or its agents), performance information relating to the
Software, and the terms of this Agreement will be deemed
Confidential Information of OSF without any marking or further
designation. Except as expressly authorized herein, the
Receiving Party will hold in confidence and not disclose any
Confidential Information to anyone other than its affiliates,
employees and consultants (“Representatives”) who have a
need to know and who agree in writing to keep the information
confidential on terms no less restrictive than those contained in
this Agreement. Both OSF and you will ensure that their
respective Representatives comply with this Agreement and will
be responsible for any unauthorized use or disclosure of
Confidential Information by such Representatives. The Receiving
Party’s nondisclosure obligation will not apply to information
which the Receiving Party can document: (a) was rightfully in its
possession or known to it prior to receipt of the Confidential
Information; (b) is or has become public knowledge through no
fault of the Receiving Party; (c) is rightfully obtained by the
Receiving Party from a third party without breach of any
confidentiality obligation; (d) is independently developed by
employees of the Receiving Party who had no access to such
information; or (e) is required to be disclosed pursuant to a
regulation, law or court order (but only to the minimum extent
required to comply with such regulation or order and with
advance notice to the Disclosing Party). The Receiving Party
acknowledges that disclosure of Confidential Information would
cause substantial harm for which damages alone would not be a
sufficient remedy, and therefore that upon any such disclosure
by the Receiving Party, the Disclosing Party will be entitled to
seek appropriate equitable relief in addition to whatever other
remedies it might have at law.
4. Fees.
4.1. Payment. You will pay all fees associated with the Software
licensed as set forth in the Order Form. All payments will be
made in U.S. Dollars, unless another currency is noted on the
applicable Order Form, within thirty (30) days of the date of the
applicable invoice. Except as expressly set forth herein, all fees
are non-refundable once paid. Fees are generally paid annually
in advance
4.2. Non-Payment If any invoiced amount is not received by OSF
by the due date, then without limiting OSF’s rights or remedies,
(i) those charges may accrue late interest at the rate of 1.5% of
the outstanding balance per month, or the maximum rate
permitted by law, whichever is lower, (ii) OSF may terminate
your license (and disable your License Keys); and/or (iii) OSF may
condition future renewals and Order Forms on payment terms
shorter than those specified above.
4.3. Taxes. The fees do not include any taxes, levies, duties or
similar governmental assessments of any nature, including
value-added, sales, use or withholding taxes, assessable by any
jurisdiction whatsoever (collectively, “Taxes”). You are
responsible for paying all Taxes associated with licenses
hereunder. If OSF has the legal obligation to pay or collect Taxes
for which you are responsible under this section, OSF will invoice
you and you will pay that amount unless you provide OSF with a
valid tax exemption certificate authorized by the appropriate
taxing authority. OSF is solely responsible for taxes assessable
against it based on its income, property and employees.
5. Term and Termination.
5.1. Term of Subscriptions. The term of each Subscription Term
will be as specified in the applicable Order Form. Except as
otherwise specified in an Order Form, any Subscription Term will
OSF PROPRIETARY 3
automatically renew for additional one year terms, unless either
party gives the other written notice (email acceptable) at least
thirty (30) days before the end of the relevant Subscription
Terms. Pricing for any renewal term may be adjusted by a rate
matching pur country’s Consumer Price Index during the last
Subscription Term.
5.2. Termination of Agreement. Either Party may terminate this
Agreement and/or an Order Form immediately upon notice if the
other Party breaches a material obligation under this Agreement
and fails to cure the breach within thirty (30) days from the date
it receives notification. OSF reserves the right to terminate this
Agreement and/or an Order Form immediately upon written
notice without giving a cure period if you breach any of the terms
relating to OSF’sintellectual property (including compliance with
the license grant and any license restrictions).
5.3. Termination. When an Order Form terminates or expires, as
to that Order Form: (i) the Subscription Term for any Software
will immediately end; (ii) you will no longer have the right to use
the Software; (iii) if any Fees were owed prior to termination,
you must pay those Fees immediately; and (iv) you must destroy
all copies of the Software in your possession or control.
5.4. Survival. Any terms or sections which by their nature should
reasonably survive will survive the termination or expiration of
this Agreement or an Order Form.
6. Limited Warranties and Disclaimer.
6.1. Limited Warranty. OSF warrants that the Software will
operate in substantial conformity with the Documentation for
the first ninety (90) days of the Subscription Term. This will not
apply if you modify the Software or if you use the Software in
any way that is not expressly permitted by this Agreement and
the Documentation. OSF’s sole liability (and your exclusive
remedy) for any breach of this warranty will be, in OSF’s sole
discretion, to use commercially reasonable efforts to provide
you with an error-correction or work-around which corrects the
reported non- conformity, or if OSF determines such remedies
to be impracticable within a reasonable period of time, to refund
the fees paid for the applicable Software. For the avoidance of
doubt, this warranty applies only to the initial Delivery of
Software under an Order Form and does not renew or reset, for
example, with renewal Subscription Terms.
6.2. Disclaimer. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE
SOFTWARE IS PROVIDED “AS IS”. NEITHER OSF NOR ITS
LICENSORS MAKES ANY OTHER WARRANTIES, CONDITIONS OR
UNDERTAKINGS, EXPRESS OR IMPLIED, STATUTORY OR
OTHERWISE, INCLUDING BUT NOT LIMITED TO WARRANTIES OF
TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE
OR NONINFRINGEMENT. YOU MAY HAVE OTHER STATUTORY
RIGHTS. HOWEVER, TO THE FULL EXTENT PERMITTED BY LAW,
THE DURATION OF STATUTORILY REQUIRED WARRANTIES, IF
ANY, WILL BE LIMITED TO THE WARRANTY PERIOD.
7. Limitation of Remedies
7.1. Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE
TO THE OTHER PARTY OR TO ANY THIRD PARTY FOR ANY
INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL
DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR
DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS
ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT,
HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM
ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE,
AND WHETHER OR NOT A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
7.2. Limitation. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY’S TOTAL
CUMULATIVE LIABILITY UNDER ANY ORDER FORM FROM ALL
CAUSES OF ACTION AND ALL THEORIES OF LIABILITY EXCEED THE
FEES ACTUALLY PAID TO OSF DURING THE TWELVE (12) MONTHS
PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY UNDER
SUCH ORDER FORM. FOR PRODUCTS AND SERVICES THAT ARE
PROVIDED FREE OF CHARGE, OSF’S LIABILITY IS LIMITED TO
DIRECT DAMAGES UP TO $1,000.00 USD.
7.3. Exceptions. The exclusions and limitations set forth in this
Section will not apply to liability arising out of (1) your noncompliance with the license grant or license restrictions in
Section 2; (2) a Party’s defense obligations in Section 8; or (c) a
Party’s breach of its confidentiality obligations.The parties agree
that the limitations specified in this Section 7 will survive and
apply even if any limited remedy specified in this Agreement is
found to have failed of its essential purpose.
8. Indemnification
8.1. By OSF. OSF will defend you against any claim brought by an
unaffiliated third party to the extent it alleges your authorized
use of the Software infringes a copyright, patent, or trademark
or misappropriates a trade secret of an unaffiliated third party.
If OSF is unable to resolve any such claim under commercially
reasonable terms, it may, at its option, either: (a) modify, repair,
or replace the Software (as applicable); or (b) terminate your
subscription and refund any prepaid, unused subscription Fees.
OSF will have no obligation under this Section for any such claim
arising from: (i) any Non-OSF Apps; (ii) your unauthorized use of
the Software or (iii) your modification of the Software.
8.2. By You. You will defend OSF against any claim brought by an
unaffiliated third party arising from: (i) any Non-OSF Apps; (ii)
your unauthorized use of the Software or (iii) your modification
of the Software.
8.3. Process. The Parties will defend each other against third-party claims, as and to the extent set forth in this Section 8 and
will pay the amount of any resulting adverse final judgment or
approved settlement, but only if the defending Party is promptly
notified in writing of the claim and has the right to control the
defense and any settlement of it. The Party being defended must
provide the defending Party with all requested assistance,
information, and authority. The defending Party will reimburse
the other Party for reasonable out-of-pocket expenses it incurs
in providing assistance, and will not settle or make any
admissions with respect to a third-party claim without the other
Party’s prior written consent, not to be unreasonably withheld
or delayed. This Section 8 describes the Parties’ sole remedies
and entire liability for such claims.
9. General.
9.1. Entire Agreement. This Agreement, including each Order
Form, constitutes the entire agreement and understanding of
the Parties with respect to its subject matter, and supersedes all
prior or contemporaneous understandings and agreements,
whether oral or written, between the Parties with respect to its
subject matter. The terms of any purchase order, written terms
or conditions, or other document that you submit to OSF that
contains terms that are different from, in conflict with, or in
addition to the terms of this Agreement or any Order Form will
be void and of no effect. There are no third-party beneficiaries
under this Agreement. In the event of a conflict between this
Agreement and an Order Form, an Order Form will govern with
respect to that order only.
9.2. Compliance. You must comply with all applicable laws and
regulations, including, but not limited to, export control, data
protection and employment laws and regulations, in your use of
the Software. You will not violate your contract with any third
party in connection with your use of the Software.
9.3. Assignment. Neither Party may assign or otherwise transfer
this Agreement, in whole or in part, without the other Party's
prior written consent, such consent not to be unreasonably
withheld, and any attempt to do so will be null and void, except
that OSF may assign this Agreement to an Affiliate or in
connection with a merger, acquisition, corporate reorganization,
or sale of all or substantially all of the assigning party's business
or assets.
9.4. Severability. If any provision of this Agreement will be
adjudged by any court of competent jurisdiction to be
unenforceable or invalid, that provision will be limited to the
minimum extent necessary so that this Agreement will otherwise
remain in effect.
9.5. Governing Law; Jurisdiction and Venue. Excluding conflict
of laws rules, this Agreement will be governed by and construed
under: (a) the laws of the State of New York, U.S. if you are
located in North or South America, (b) the laws of Japan if you
are located in Japan, (c) the laws of Australia if you are located
in Asia (excluding Japan) or Australia, or (d) the laws of England
and Wales if you located outside of North or South America, Asia
and Australia. All disputes arising out of or in relation to this
Agreement will be submitted to the exclusive jurisdiction of the
courts of: (i) New York when the laws of New York apply, (ii)
Tokyo, Japan, when the laws of Japan apply, (iii) Singapore when
the laws of Singapore apply, or (iv) London when the laws of
England and Wales apply. Nothing in this section will restrict
OSF’s right to bring an action (including for example a motion for
injunctive relief) against you in the jurisdiction where your place
of business is located. The United Nations Convention on
Contracts for the International Sale of Goods and the Uniform
Computer Information Transactions Act, as currently enacted by
any jurisdiction or as may be codified or amended from time to
time by any jurisdiction, do not apply to this Agreement. The
prevailing party in any action to enforce this Agreement will be
entitled to recover its attorneys’ fees and costs in connection
with such action.
9.6. Notices. Except as otherwise specified in this Agreement, all
notices related to this Agreement will be in writing and will be
effective upon (a) personal delivery, (b) the second business day
after mailing, or (c), except for notices of termination or an
indemnifiable claim, which shall clearly be identifiable as such,
the day of sending by email. Billing-related notices to you will be
addressed to the relevant billing contact designated by you. All
other notices to you will be addressed to the relevant system
administrator designated by Customer. Notices to OSF shall be
sent to legalnotices@osf.digital.
9.7. Amendment. OSF reserves the right to amend this
Agreement at any time and will update the terms and conditions
of this Agreement in the event of any such amendments,
provided that changes to this Agreement will become effective
upon the anniversary of your then-current Subscription Term.
This Agreement and any addenda, including an Order Form,
must control and no modification, change, or amendment of this
Agreement will be binding upon the Parties or supersede the
terms of this Agreement unless it is in writing, and is duly signed
by each Party's authorized representative.
9.8. Independent Contractors. The parties are independent
contractors. This Agreement does not create a partnership,
franchise, joint venture, agency, fiduciary or employment
relationship between the parties. Each party will be solely
responsible for payment of all compensation owed to its
employees, as well as all employment-related taxes.
9.9. Audit Rights. Upon OSF’s written request, you will certify in
a signed writing that your use of the Software is in full
compliance with the terms of this Agreement. With reasonable
prior notice, OSF may audit your use of the Software and
compliance with this Agreement, provided such audit is during
regular business hours. If such inspections or audits disclose that
you have installed, accessed or permitted access to or use of the
Software in a manner that is not permitted under this
Agreement, then OSF may terminate this Agreement pursuant
to Section 6 and you are liable for the reasonable costs of the
audit in addition to any other fees, damages and penalties OSF
may be entitled to under this Agreement and applicable law.
9.10. Force Majeure. OSF will be excused from liability to the
extent that it is unable to perform any obligation under this
Agreement due to causes beyond its reasonable control,
including acts of God, natural disasters, strikes, riots, acts of war,
epidemics, or power, telecommunication or network failures.
9.11. No Publicity. OSF may not use your logo in any advertising
or marketing materials without your permission. However, OSF
may identify you as a customer to current and prospective
customers and on its website.
9.12. Language. Regardless of any language into which this
Agreement may be translated, the official, controlling and
governing version of this Agreement will be exclusively the
English language version.
9.13. Waiver. A Party's obligations under this Agreement must
only be waived in a writing signed by an authorized
representative of the other Party, which waiver will be effective
only with respect to the specific obligation described. No failure
or delay by a Party to this Agreement in exercising any right
hereunder will operate as a waiver thereof, nor will any single or
partial exercise thereof preclude any other or further exercise
thereof or the exercise of any right hereunder at law or equity.
