THE TERMS OF THIS MASTER SERVICES AGREEMENT (“AGREEMENT”) APPLY TO ANY AND ALL SERVICES (AS DEFINED BELOW) OF OUROFFICE, INC. (“COMPANY”). THE TERMS APPLY TO YOUR ACCESS TO AND USE OF PORTAL.OUROFFICE.IO AND TO OUROFFICE WEBSITES (DESKTOP AND MOBILE) (“WEBSITE(S),” OR “SITE(S)”), APPLICATIONS, APPS, AND ALL MEANS OF WRITTEN AND ORAL COMMUNICATIONS, INCLUDING EMAILS, CHATS, INSTANT MESSAGES, AND THE LIKE, AND VOICE COMMUNICATIONS (REFERRED TO HEREIN INDIVIDUALLY AND COLLECTIVELY, INCLUDING WEBSITES OR SITES, AS “SERVICES.” “PLATFORMS ” OR “PLATFORM”). THESE PLATFORMS AND OUROFFICE ARE OWNED AND/OR OPERATED BY OR FOR OUROFFICE, INC., AND/OR ONE OR MORE OF ITS SUBSIDIARIES (“COMPANY,” “US,” “WE,” “OUR”). IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OUROFFICE’S SERVICES. YOU ACKNOWLEDGE THAT YOUR ACCESSING OR USING ANY SERVICES OR PLATFORM, INCLUDING WHETHER OR NOT YOU CLICK THE “CONTINUE BUTTON,” CONSTITUTES YOUR WRITTEN AGREEMENT AND ELECTRONIC SIGNATURE AND YOUR INTENT THAT YOU, THE ENTITY YOU REPRESENT AND ANY AFFILIATE OF SUCH ENTITY (COLLECTIVELY, “CUSTOMER”) AGREE THAT YOU HAVE READ AND AGREE TO BE BOUND BY THIS AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. THIS AGREEMENT IS ENTERED INTO AS OF THE DATE YOU ACCEPT THESE TERMS OR USE THE APPLICATION SERVICES (“EFFECTIVE DATE”).
SERVICES AND SUPPORT
- Subject to the terms of this Agreement, Company will use commercially reasonable efforts to provide Customer the Services. Company reserves the right to refuse or cancel Services.
- Company will use commercially reasonable efforts to (i) maintain the security and integrity of the Services and any electronic data or information provided by Customer, and (ii) provide Customer with reasonable support in accordance with Company’s standard practices to support Customer success.
RESTRICTIONS AND RESPONSIBILITIES
- Subject to the terms of this Agreement, Company hereby grants to Customer a non-transferable, non-sublicensable, non-exclusive, revocable license to access and use the Services. Except as expressly set forth in this Agreement, 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, processes, or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”) or support provided by OurOffice employees or associates; 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 time sharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
- Customer represents, covenants, and warrants that Customer will use the Services only in compliance with the terms and conditions of this Agreement, and all applicable laws and regulations. Customer hereby agrees to indemnify and hold Company harmless against any damages, losses, liabilities, settlements and expenses (including without limitation out-of-pocket costs and reasonable attorneys’ fees) resulting from any third party claim or action to the extent any such claim or action 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.
- 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
- 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, processes, and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to Company orally or in writing 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 lawfully in its possession or known by it, in either case, without breach of an obligation of confidentiality relating to such information 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 the use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by applicable legal, regulatory, governmental or administrative process or proceeding to which Receiving Party is subject.
- Customer shall own all right, title and interest in and to the Customer Data, and no right, title or interest in and to such Customer Data shall be transferred under this Agreement. 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.
- Notwithstanding anything to the contrary, Company shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems, technologies, and processes (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 and/or other de-identified form in connection with its business. Company shall not identify Customer in any such disclosure or make such a disclosure in a manner that identifies Customer. No rights or licenses are granted except as expressly set forth herein.
- Company shall indemnify and hold harmless Customer from liability to third parties resulting from infringement by the Services of any United States patent or any copyright or misappropriation of any trade secret, provided Company is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Company will not be responsible for any settlement it does not approve. The foregoing obligations do not apply with respect to portions or components of the Services (i) not created by Company, (ii) resulting in whole or in part in accordance from Company specifications, (iii) that are modified after delivery by Company, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not in accordance with this Agreement and all related documentation.
PAYMENT OF FEES
- The Customer will pay Company the applicable fees described in the Order Form for the 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 sixty (60) days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to Company’s customer support department.
- Company may choose to bill through an invoice, in which case, full payment for the invoice issued is due upon receipt. Thirty (30) days after the mailing date of the invoice, any outstanding balance is subject to a finance charge of 1.5% per month, 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
- Subject to earlier termination as provided below, and unless intended for pilot use, 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.
- 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. 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 commercially 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. 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
- Limitation of Remedies and Damages. IN NO EVENT SHALL COMPANY, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, SUBSTITUTE GOODS OR SERVICES (HOWEVER ARISING), (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF AN AMOUNT EQUAL TO THE GREATER OF (IN THE AGGREGATE) $100 OR THE ANNUAL SERVICE FEE (OR PRO RATA PORTION THEREOF PER THE SERVICE TERM).
- 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 either party except with other party’s prior written consent, provided that either party may assign or transfer this Agreement in connection with the sale of all, or substantially all, of its stock, business, or assets to which this Agreement relates (whether by merger, change in control, asset purchase or otherwise) without the other party’s 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 Customer does not have any authority of any kind to bind Company 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 California without regard to its conflict of laws provisions. All disputes, controversies or other claims arising out of or relating to the Agreement shall be adjudicated in the Federal or State courts located in Los Angeles, California. The parties shall work together in good faith to issue at least one mutually agreed upon press release. Both parties have the right to use each others’ logos, and to disclose the general nature of this agreement in their marketing efforts. The Company has the right to use any testimonial by the Customer in its marketing materials. Customer agrees to reasonably cooperate with Company to serve as a reference upon request.
- Company reserves the right in its sole and unfettered discretion at any time to modify the Terms from time to time without notice to Customer and to impose new or additional terms or conditions on your use of Services or any Platform. Company may optionally notify Customer of any such change by sending an email message to the Administrator email address provided to Company. Such modifications and additional terms and conditions will be effective immediately and incorporated into this Agreement. Continued use of the Services will be deemed acceptance thereof. Except as posted by Company, including to the Websites or any Platform, the Terms will not be otherwise amended, and no terms will be waived by Company, except in a writing, signed by Customer and an authorized representative of Company who intends to do so. For purposes specifically of this provision regarding any so-called amendment or waiver of the Terms, a “writing” does not include an email message, text, chat, or the like, sent from any device existing now or later developed. Company is not obligated to provide notice of modifications or amendment to the Terms by way of any method other than the making available or posting of the amended Terms on or through any Company Website(s) or Platform, and doing so without more is deemed and agreed to be sufficient notice of modifications and amendment(s). The provisions contained herein supersede all previous notices or statements regarding Company Terms with respect to any Platform. Company may include the revised date and effective date of Company Terms either at the top, bottom, or within the revised Terms. By using any Services or Platform following any modifications to the Terms, Customer agrees to be bound by such modifications.