Effective as of September, 14 2021
PLEASE CAREFULLY READ THESE TERMS AND CONDITIONS, AS THEY, TOGETHER WITH THE APPLICABLE OPENBRIDGE ORDER FORM ON WHICH THEY ARE REFERENCED, CONSTITUTE A LEGALLY BINDING AGREEMENT AND GOVERN YOUR USE OF THE PLATFORM AND ASSOCIATED SERVICES PROVIDED BY OPENBRIDGE. BY ACCESSING OR USING OPENBRIDGE, BY RECEIVING OPENBRIDGE SERVICES, OR BY CLICKING “I AGREE”, “ORDER”, "SIGN UP", YOU ARE INDICATING THAT YOU ACCEPT THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT USE OPENBRIDGE SERVICES OR ACCESS AND USE THE OPENBRIDGE PLATFORM.
By agreeing to the Openbridge Terms, you and any entity that you represent ("Customer") are unconditionally consenting to be bound by and are becoming a party to these Openbridge Terms ("Agreement") as of the date of Customer's first Software usage (the "effective date"). Customer's continued use of the Software or any licensed materials provided by Openbridge, Inc., trading as Openbridge ("Openbridge") (or one of its affiliates and/or subsidiaries, as specified on an order form or Quote), shall also constitute assent to the terms of this Agreement.
Except as otherwise stated, no supplement, modification, or amendment of this Agreement shall be binding unless executed in writing by a duly authorized representative of each party. No waiver will be implied from conduct or failure to enforce or exercise rights under this Agreement, nor will any waiver be effective unless in writing signed by a duly authorized representative on behalf of the party claimed to have waived. This Agreement may be executed by written signature or electronically and delivered in multiple counterparts, including facsimile, PDF, or other electronic counterparts, all of which will constitute the same instrument and Agreement.
From time to time, Openbridge may modify this Agreement. Unless another agreement between the parties supersedes this Agreement, changes become effective for Customer upon renewal of the then-current subscription term or entry into a new Order Form after the updated version of this Agreement goes into effect.
Software, Services, and related materials are collectively referred to herein as the “Licensed Materials".
Customer will not, directly or indirectly: reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how, or algorithms relevant to the Licensed Materials or any software, documentation, or data related to the Licensed Materials; modify, translate, or create derivative works based on the Licensed Materials (except to the extent expressly permitted by Openbridge in writing or authorized within the Services).
Customer agrees that Openbridge and/or its licensors (as applicable) retain all right, title, and interest in and to all Licensed Materials incorporated in such modifications and/or patches, and all such Licensed Materials may only be used, copied, modified, displayed, distributed, or otherwise exploited in full compliance with this Agreement, and with a paid Openbridge subscription.
Openbridge will provide practical support to the Customer for the support plan selected and paid for. If Customer does not reasonably comply with written specifications or instructions from Openbridge regarding any support issue or request, Openbridge may terminate its support obligations to Customer concerning such Support issue upon fifteen (15) days written notice if Customer does not cure such noncompliance within the notice period. Openbridge will use reasonable commercial efforts to respond to support questions by chat or email during the next business day at the latest.
This Agreement is the complete statement of the mutual understanding of the parties. It supersedes and cancels all previous written and oral agreements, communications, and other understandings relating to the subject matter. This Agreement shall supersede the terms of any purchase order or other business form. If accepted by Openbridge instead of, or in addition to, Openbridge's Order Form, the Customer's purchase order shall be binding only as to the following terms: (a) the Services ordered and (b) the appropriately calculated fees due. Other terms shall be void.
Except as expressly authorized, the Customer will not, and will not permit any third party to:
Use the Licensed Materials or Software other than per this Agreement and comply with all applicable laws and regulations.
The Customer will cooperate with Openbridge in connection with the performance of this Agreement by making available such personnel and information as may be reasonably required and taking such other actions as Openbridge may reasonably request. The Customer will also cooperate with Openbridge to establish authorization or other procedures for verifying that only designated Customer entities have access to any administrative functions of the Licensed Materials.
Customer shall maintain during the term of this Agreement and through the end of the third year after the date on which the final payment is made under this Agreement, books, records, contracts, and accounts relating to the amounts due Openbridge under this Agreement (collectively, the "Customer Records").
Openbridge may, at its sole expense, upon 30 days prior written notice to Customer and during Customer's regular business hours and subject to industry-standard confidentiality obligations, hire an independent third-party auditor to audit the Customer Records only to verify the amounts payable under this Agreement. If an audit reveals underpayment, then the Customer shall promptly pay the deficiency to Openbridge plus late fees and pay Openbridge for the reasonable costs of the audit.
The Customer will be responsible for maintaining the security of the Customer's account, passwords, files, and all uses of the Customer account.
Each party (the "Receiving Party") understands that the other party (the "Disclosing Party") has disclosed or may disclose information relating to the Disclosing Party's technology or business (from now on referred to as "Proprietary Information" of the Disclosing Party). Without limiting the preceding, the Licensed Materials are Openbridge Proprietary Information.
The Receiving Party agrees:
The Disclosing Party agrees that the foregoing will not apply concerning any information that the Receiving Party can document:
Nothing in this Agreement will prevent the Receiving Party from disclosing Proprietary Information under any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
Openbridge may collect data concerning aggregate measures of the Licensed Materials' performance and Customer's usage of the Licensed Materials. Openbridge will not identify Customer as to the source of any such data without the Customer's prior written consent. The use of a third party to host the data collected shall not be deemed a disclosure.
Each party acknowledges and agrees that the other may suffer irreparable damage in the event of a breach of this Agreement. Such party will be entitled to seek injunctive relief (without the necessity of posting a bond) in the event of any such breach.
Both parties will have the right to disclose the existence of the relationship between the parties, but not the terms and conditions of this Agreement unless such disclosure of the Agreement terms are approved in writing by both Parties before such disclosure or is included in a filing required to be made by a party with a governmental authority or is made on a confidential basis as reasonably necessary to potential investors or acquirers.
Openbridge alone will retain all intellectual property rights relating to the Licensed Materials and any suggestions, ideas, enhancement requests, feedback, code, or other recommendations provided by Customer, its Affiliates, or any third party relating to the Licensed Materials, which are as a result of this assigned to Openbridge. This Agreement is not a sale and does not convey to Customer any ownership rights in or related to the Licensed Materials or any intellectual property rights related to the Service.
Customer shall not remove, alter or obscure any copyright notices, proprietary legends, trademark or service mark attributions, patent markings, or other indicia of ownership or contribution from the Licensed Materials. Additionally, the Customer agrees to reproduce and include proprietary and copyright notices on any copies of the Licensed Materials or any portion thereof, including reproduction of the copyright notice.
Notwithstanding anything to the contrary herein, specific components of the Licensed Materials, including without limitation, any element of the Licensed Materials distributed by Openbridge, are licensed by third parties according to the terms of specific third-party licenses described in such source code annotations.
Customer and its licensors shall have and retain all right, title, and interest all information and data provided by or on behalf of Customer or made available or otherwise distributed through the use of the Licensed Materials. If Openbridge receives any notice or claims that any Content or Customer's activities infringe or violates the rights of a third party or any applicable law or regulation (a "Claim"), Customer will indemnify, defend and hold Openbridge harmless from all liability, damages, settlements, attorney fees, and other costs and expenses in connection with any such Claim, as incurred.
Indemnity obligations are expressly conditioned on Openbridge providing Customer with prompt notice of and reasonable cooperation and sole control over the applicable Claim's defense and/or settlement. Openbridge may participate in the defense and/or settlement of any applicable Claim with counsel of its choosing at its own expense.
Openbridge will defend, indemnify and hold Customer harmless from liability and other amounts paid or payable to unaffiliated third parties resulting from (i) the infringement or violation of any intellectual property or proprietary rights by the Licensed Materials or (ii) the violation of applicable law or regulation by Openbridge in performance of its obligations hereunder, provided Openbridge is promptly notified of any threats, claims, and proceedings related to that and given reasonable assistance and the opportunity to assume sole control over defense and settlement thereof.
The Customer may participate in the defense and/or settlement of any claim by Openbridge with counsel of its choosing at its own expense. The preceding obligations do not apply concerning portions or components of the Licensed Materials:
Customers will pay Openbridge the applicable fees described in the Order Form for the Licensed Materials under the terms therein (the "Fees"). If Customer's use of the Licensed Materials exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees, Customer shall be billed for such usage and Customer agrees to pay the additional costs in the manner provided herein.
Openbridge reserves the right to change the Fees or applicable charges and institute new charges at the end of the Service Term or then-current renewal term upon thirty (30) days prior notice to the Customer.
If Customer believes that Openbridge has billed Customer incorrectly, Customer must contact Openbridge no later than 30 days after the closing date on the first billing statement in which the error or problem appeared to receive an adjustment or credit. Inquiries should be directed to Company's customer support department via support@openbridge.com.
Openbridge may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Openbridge thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all collection expenses and may result in immediate termination of Service.
Customer shall be responsible for all taxes associated with the Licenses Materials other than U.S. taxes based on Openbridge's net income. Our fees do not include any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, GST, use or withholding taxes, assessable by any jurisdiction whatsoever concerning your purchases under this Agreement (collectively, the "Taxes"). You are solely responsible for paying all Taxes associated with your purchases. If we have a legal obligation to pay or collect Taxes for which you are responsible, we shall invoice you, and you shall pay that amount to us unless you provide us with a valid tax exemption certificate authorized by the appropriate taxing authority.
Applicable Taxes will be based on your billing address as detailed on the relevant Order Form. You must inform us if Taxes should be assessed on a different address other than the billing address on record. You shall promptly notify us of any changes to any of your addresses specified in an Order Form. Taxes shall not be deducted from or set off against the fees in the applicable Order Form.
This Agreement is for the Service Term as specified in the Order Form and shall be automatically renewed for additional periods of the same duration as the Service Term (collectively, the "Term") unless either party requests termination with at least thirty (30) days notice.
This Agreement shall continue until terminated per this Section. Either party may terminate this Agreement upon 30 days' written notice to the other party hereto in the event that Customer has no then-current subscription concerning the Licensed Materials.
The Customer may terminate this Agreement at any time upon written notice to Openbridge. Either party may terminate this Agreement immediately upon 30 days written notice to the other party in the event of any material breach of this Agreement by such party where such material breach is not cured during such notice period.
Either party may terminate this Agreement, without notice:
Customer's rights to the Licensed Materials, and any licenses granted hereunder, shall terminate upon any termination of this Agreement.
Openbridge represents and warrants that (i) it has all rights and licenses necessary for it to perform its obligations hereunder, and (ii) it will not knowingly include, in any Openbridge software released to the public and provided to Customer hereunder, any computer code or other computer instructions, devices or techniques, including without limitation those known as disabling devices, trojans, or time bombs, that are intentionally designed to disrupt, disable, harm, infect, defraud, damage, or otherwise impede in any manner, the operation of a network, computer program or computer system or any component thereof, including its security or user data.
If at any time, Openbridge fails to comply with the warranty in this Section, the Customer may promptly notify Openbridge in writing of any such noncompliance. Openbridge will, within thirty (30) days of receipt of such written notification, either correct the noncompliance or provide the Customer with a plan for fixing the noncompliance. If the noncompliance is not updated or if a reasonably acceptable method for correcting them is not established during such period, the Customer may terminate this Agreement as its sole and exclusive remedy for such noncompliance.
EXCEPT AS EXPRESSLY STATED HEREIN, THE LICENSED MATERIALS, SOFTWARE, AND OPENBRIDGE PROPRIETARY INFORMATION AND ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT ARE PROVIDED "AS-IS," WITHOUT ANY WARRANTIES OF ANY KIND. OPENBRIDGE AND ITS LICENSORS, AS A RESULT OF THIS, DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. OPENBRIDGE 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 THE USE OF THE SERVICES. EXCEPT AS EXPRESSLY OUTLINED IN THIS SECTION, THE SERVICES ARE PROVIDED "AS IS," AND OPENBRIDGE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
IN NO EVENT WILL EITHER PARTY OR THEIR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE USE OF THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT, ANY DELAY OR INABILITY TO USE THE LICENSED MATERIALS OR ANYTHING PROVIDED IN CONNECTION WITH THIS AGREEMENT OR OTHERWISE ARISING FROM THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES. EXCEPT WITH RESPECT TO BREACH(ES) PREVIOUSLY DETAILED, THE TOTAL LIABILITY OF EACH PARTY AND ITS LICENSORS, WHETHER BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, WILL NOT EXCEED, IN THE AGGREGATE, THE GREATER OF (i) ONE THOUSAND DOLLARS ($1,000), OR (ii) THE FEES PAID TO OPENBRIDGE HEREUNDER IN ONE YEAR PERIOD ENDING ON THE DATE THAT A CLAIM OR DEMAND IS FIRST ASSERTED. THE PRECEDING LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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 sub-licensable by either party without the other party's prior written consent, not to be unreasonably withheld or delayed; provided that either party may transfer and/or assign this Agreement to a successor in the event of a sale of all or substantially all of its business or assets to which this Agreement relates.
Both parties agree that 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 writing signed or otherwise agreed to by each party, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement, and neither party has any authority of any kind to bind the other 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 email; and upon receipt, if sent by certified or registered mail (return receipt requested), postage prepaid.
Openbridge will not be liable for any loss resulting from a cause over which it does not have direct control. This Agreement will be governed by the laws of the State of California, U.S.A. without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco County, California, U.S.A. will have proper and exclusive jurisdiction and venue concerning any disputes arising from or related to the subject matter.
Notwithstanding anything else, Customer may not provide to any person or export or re-export or allow the export or re-export of the Licensed Materials or any software or anything related to that or any direct product thereof (collectively "Controlled Subject Matter"), in violation of any restrictions, laws or regulations of the United States Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or any other United States or foreign agency or authority. Without limiting the preceding, Customer acknowledges and agrees that the Controlled Subject Matter will not be used or transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. Use of the Licensed Materials is representation and warranty that the User is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. The Controlled Subject Matter may use or include encryption technology subject to licensing requirements under the U.S. Export Administration Regulations. As defined in FAR section 2.101, any software and documentation provided by Openbridge are "commercial items," and according to DFAR section 252.2277014(a)(1) and (5) are deemed to be "commercial computer software" and "commercial computer software documentation." Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial Software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
Customer shall ensure that any information or data, including without limitation, personal data, used by Customer in connection with the Agreement ("Customer Data") is collected, processed, transferred, and used in full compliance with Applicable Data Protection Laws (as defined below) and that it has all obtained all necessary authorizations and consents from any data subjects to process Customer Data.
Customer shall adopt and maintain appropriate organizational, technical, and security measures before any such collection, processing, or transfer to protect against unauthorized access to or use of Customer Data.
Customer shall immediately inform Openbridge upon becoming aware of any breach within the meaning of Applicable Data Protection Law relating to Customer Data (a "Security Incident") and to cooperate with Openbridge in any investigation thereof and in the implementation of any measures reasonably required to be taken in response to that.
If required by Applicable Data Protection Laws, the parties will enter into standard contractual clauses under GDPR (as defined below) to transfer any Customer Data outside the European Union. For purposes hereof: (a) "Applicable Data Protection Laws" means any applicable laws, statutes or regulations as may be amended, extended or re-enacted from time to time which relate to personal data including without limitation (i) before 25 May 2018, the EU Data Protection Directive 95/46/EC as transposed into EU Member State law; (ii) from and after 25 May 2018, GDPR and any EU Member State laws implementing the GDPR; and (iii) the e-Privacy Directive 2002/58/EC, as amended and as transposed into EU Member State law and any legislation replacing the e-Privacy Directive and (b) "GDPR" means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons concerning the processing of personal data and the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
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