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.
1.1. “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.
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.
3.1. 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.
4.1. 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.
5.1. 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.
6.1. 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.
7.1. 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.
8.1. 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.
9.1. 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 firstname.lastname@example.org.
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.