These Obo Terms of Service (“Agreement“) between You (“Customer”) and Obo Inc. (“Obo”), govern Customer’s access to and use of the Service, the Obo Software, the Obo Applications and the Obo Content. By accessing or using an Obo Service in any manner, Customer agrees to the Agreement. Please refer to Section 1 for definitions of certain capitalized terms.
THIS AGREEMENT CONSTITUTES A BINDING CONTRACT ON YOU AND GOVERNS YOUR USE OF AND ACCESS TO THE SERVICES BY YOU, AGENTS AND END-USERS WHETHER IN CONNECTION WITH A PAID OR FREE TRIAL SUBSCRIPTION TO THE SERVICES.
By accepting this Agreement, either by accessing or using a Service, or authorizing or permitting any Agent or End-User to access or use a Service, You agree to be bound by this Agreement. If You are entering into this Agreement on behalf of a company, organization or another legal entity (an “Entity”), You are agreeing to this Agreement for that Entity and representing to Obo that You have the authority to bind such Entity and its Affiliates to this Agreement, in which case the terms “Subscriber,” “You,” “Your” or a related capitalized term herein shall refer to such Entity and its Affiliates. If You do not have such authority, or if You do not agree with this Agreement, You must not accept this Agreement and may not use any of the Services.
When used in this Agreement with the initial letters capitalized, in addition to the terms defined elsewhere in this Agreement, the following terms have the following meanings:
Account: means any accounts or instances created by or on behalf of Subscriber or its Agents within the Services.
Affiliate: means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
Agent: means an individual authorized to use a Service through Your Account as an agent and/or administrator as identified through a unique login.
Applicable Data Protection Law: means the following data protection law(s): (i) where You (acting as data controller or data processor) are established in an European Economic Area (“EEA”) member state or where Your Agents or End-Users access the Services from an European Economic Area (“EEA”) member state: (a) prior to May 25, 2018, the Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995, entitled “On the protection of individuals with regard to the processing of personal data, and on the free movement of such data.” (as implemented into the relevant national laws of the member state in which You are established), and (b) on and after May 25, 2018, the EU Regulation 2016/679 (and any applicable national laws made under it); and (ii) where You are established in Switzerland, the Swiss Federal Act of 19 June 1992 on Data Protection (as may be amended or superseded).
Application: means any suite, configuration file, add-on, technical add-on, example module, command, function or application that extends the features or functionality of the applicable Service or the underlying Obo Software.
API: means the application programming interfaces developed and enabled by Obo that permit Subscribers to access certain functionality provided by the Services, including, without limitation, the REST API that enables the interaction with the Services automatically through HTTP(S) requests and the application development API that enables the integration of the Services with other web applications.
Associated Services: means products, services, features and functionality designed to be used in conjunction with the Services but not included in the Service Plan to which You subscribe, including, without limitation, integrations and applications created or developed by Obo or its Affiliates and Partners which will be governed by this Agreement unless Obo otherwise communicates a different agreement to You at the time of Your deployment of or access to the integration or application.
Beta Services: means a product, service, or capability provided by Obo that may be made available to You to try at Your option at no additional charge which is designated as beta, pilot, limited release, non-production, early access, evaluation, or similar description.
Confidential Information: means all information disclosed by You to Obo or by Obo to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to, information relating to Obo’s security policies and procedures. For purposes of this Agreement, this Agreement as well as Service Data shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving Party at the time of disclosure by the disclosing Party; (b) was or is obtained by the receiving Party by a third party not known by the receiving Party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of this Agreement or another valid agreement between the Parties; or (d) was or is independently developed by the receiving Party without use of the disclosing Party’s Confidential Information.
Consulting Services: means consulting and professional services (including any training, success or implementation services) provided by Obo or its authorized subcontractors as indicated on an Order or other written document.
Documentation: means any written or electronic documentation, images, video, text or sounds specifying the capabilities and functions of the Services or describing Service Plans provided or made available by Obo to You. Documentation specifically excludes any information posted on or available from “community moderated” forums.
End-User: means any person or entity other than Subscriber or Agents with whom Subscriber or its Agents interact using a Service.
Obo Product Suite: means the Obo applications available at obo.io, oboprod.com, and obo.pm as well as any successor or related site designated by Obo.
Obo Content: means the information, data, technology and materials, other than Obo Applications, that Obo makes available at its discretion in connection with the Services or in the Obo Product Suite, including Documentation, sample code, software libraries, command line tools, and other related items such as add-ons, templates, and best practices. Obo Content does not include Obo Software.
Obo Software: means a specific and unique instance of the Obo software product that is made available to Customer as a Service or a part thereof, and includes any new releases or maintenance and support updates to such software as Obo makes generally commercially available during the Subscription Term. Obo Software does not include Obo Applications.
Order: means any of Obo’s generated orders executed or approved by You with respect to Your subscription to a Service, which form may detail, among other things, the number of Agents authorized to use a Service under Your subscription to a Service and the Service Plan applicable to Your subscription to a Service.
Payment Agent: means Obo, Inc. or a payment agent designated by Obo.
Personal Data: means any information relating to an identified or identifiable natural person who can be identified, directly or indirectly, by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural, or social identity.
Personnel: means Obo employees and/or non-employee service providers and contractors.
Service(s): means the products and services that are ordered by You, whether on a trial or paid basis, and made available online by Obo, via the applicable subscriber login link and other web pages designated by Obo, including the applicable Software, updates, API, Documentation, and all applicable Associated Services that You have purchased or deployed or to which You have subscribed. “Services” exclude Third Party Services as that term is defined in this Agreement. From time to time the names and descriptions of the Services or any individual Service capability or component may be changed. To the extent Subscriber is given access to such Service through a prior Order or other prior acceptance of this Agreement, this Agreement shall be deemed to apply to such newly named or described Service.
Service Data: means electronic data, text, messages, communications or other materials submitted to and stored within an Obo Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
Service Plan(s): means the service plan(s) and the capabilities, functions, and services associated with the Services to which You subscribe.
Site: means a website operated by Obo, including obo.io, oboprod.com, and obo.pm, as well as all other websites that Obo operates.
Software: means software provided by Obo (either by download or access through the Internet) that allows Agents or End-Users to use any functionality in connection with the applicable Service.
Subscription Term: means the period during which You have agreed to subscribe to a Service.
Third Party Services: means third-party products, applications, services, software, networks, systems, directories, websites, databases, and information obtained separately by You which a Service links to, or which You may connect to or enable in conjunction with a Service, including Third Party Services that may be integrated directly into Your Account by You or at Your direction.
“We,” “Us” or “Our”: means Obo as defined below.
Obo: means Obo, Inc., a California corporation, or any of its successors or assignees.
2. General Conditions
2.1 Access. During the Subscription Term and subject to compliance by You, Agents and End-Users with this Agreement, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable Deployed Associated Services, for Your internal business purposes. An Affiliate may receive Services under this Agreement provided that such Affiliate directly enters into a Service Order. By entering into a Service Order, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto. Subscriber will be responsible for its Affiliates’ compliance with this Agreement. We will (a) make the Services and Service Data available to You pursuant to this Agreement and the applicable Orders; (b) provide applicable standard customer support for the Services; (c) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, except (i) during planned downtime for upgrades and maintenance to the Services (of which We will use commercially reasonable efforts to notify You in advance both through Our Site and a notice to Your Account owner and Agents) (“Planned Downtime”); and (ii) for any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, Third Party Services, or acts undertaken by third parties, including without limitation, denial of service attack (“Force Majeure Event”).
2.2 Connectivity Requirements. A high-speed Internet connection is required for proper transmission of the Services. You are responsible for procuring and maintaining the network connections that connect Your network to the Services, including, but not limited to, “browser” software that supports protocols used by Obo, including the Secure Socket Layer (SSL) and/or Transport Layer Security (TLS) protocol or other protocols accepted by Obo, and to follow procedures for accessing services that support such protocols. We are not responsible for notifying You, Agents or End-Users of any upgrades, fixes or enhancements to any such software or for any compromise of data, including Service Data, transmitted across computer networks or telecommunications facilities (including but not limited to the Internet) which are not owned, operated or controlled by Obo. We assume no responsibility for the reliability or performance of any connections as described in this section.
2.3 Authorized Use. In addition to complying with the other terms, conditions and restrictions set forth below in this Agreement, You agree not to (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Services available to any third party, other than authorized Agents and End-Users in furtherance of Your internal business purposes as expressly permitted by this Agreement; (b) use the Services to Process data on behalf of any third party other than Agents or End-Users; (c) modify, adapt, or hack the Services or otherwise attempt to gain unauthorized access to the Services or related systems or networks; (d) falsely imply any sponsorship or association with Obo, (e) use the Services in any unlawful manner, including, but not limited to, violation of any person’s privacy rights; (f) use the Services to send unsolicited or unauthorized bulk mail, junk mail, spam, pyramid schemes or other forms of duplicative or unsolicited messages; (g) use the Services to store or transmit files, materials, data, text, audio, video, images or other content that infringes on any person’s intellectual property rights; (h) use the Services in any manner that interferes with or disrupts the integrity or performance of the Services and its components; (i) attempt to decipher, decompile, reverse engineer or otherwise discover the source code of any Software making up the Services; (j) use the Services to knowingly post, transmit, upload, link to, send or store any content that is unlawful, racist, hateful, abusive, libelous, obscene, or discriminatory; (k) use the Services to store or transmit any “protected health information” as that term is defined in 45 C.F.R. 160.103, unless expressly agreed to otherwise in writing by Obo; (l) use the Services to knowingly post transmit, upload, link to, send or store any viruses, malware, Trojan horses, time bombs, or any other similar harmful software (“Malicious Software”); (m) use or launch any automated system that accesses a Service (i.e., bot) in a manner that sends more request messages to a Service server in a given period of time than a human can reasonably produce in the same period by using a conventional on-line web browser; or (n) attempt to use, or use the Services in violation of this Agreement.
2.4 Compliance. As between You and Obo, You are responsible for compliance with the provisions of this Agreement by Agents and End-Users and for any and all activities that occur under Your Account. Without limiting the foregoing, You are solely responsible for ensuring that use of the Services to store and transmit Service Data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Agents or End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable Service Plan(s) to which You subscribed or applicable Deployed Associated Service, access to and use of the Services is restricted to the specified number of individual Agents permitted under Your subscription to the applicable Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account. Obo reserves the right to periodically verify that Your use of the Obo Services complies with the Agreement and the Service Plan restrictions on Our Site. Should Obo discover that Your use of an Obo Service is not in compliance with this Agreement or the Service Plan restrictions on Our Site, Obo reserves the right to charge You, and You hereby agree to pay for, said usage in addition to other remedies available to Us.
2.5 Malicious Software. In addition to Our rights as set forth in Sections 2 and 8.4, We reserve the right, in Our reasonable discretion, to temporarily suspend Your access to and use of a Service if We suspect or detect any Malicious Software connected to Your Account or use of a Service by You, Agents or End-Users.
2.6 Modifications. You acknowledge that Obo may modify the features and functionality of the Services during the Subscription Term.
2.7 Competitive Restrictions. You may not access the Services if You are a direct competitor of Obo, except with Obo’s prior written consent. You may not access the Services for the purposes of monitoring performance, availability, functionality, or for any benchmarking or competitive purposes.
2.8 Trial Use. If You register for a free trial for any of the Services, Obo will make such Services available to You on a trial basis free of charge until the earlier of (a) the end of the free trial period for which You registered to use the applicable Service(s); (b) the start date of any subscription to such Service purchased by You for such Service(s); or (c) termination of the trial by Obo in our sole discretion. Please review the applicable Documentation during the trial period so that You become familiar with the features and functions of the Services under applicable Service Plans before You make Your purchase.
ANY SERVICE DATA YOU ENTER INTO A SERVICE, AND ANY CONFIGURATIONS OR CUSTOMIZATIONS MADE TO A SERVICE BY OR FOR YOU, DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS COVERED BY THE TRIAL, PURCHASE THE APPLICABLE SERVICE, OR EXPORT SUCH SERVICE DATA, BEFORE THE END OF THE TRIAL PERIOD.
2.9 Beta Services. From time to time, Obo may make Beta Services available to You at no charge. You may choose to try such Beta Services in Your sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms that will be presented to You. Beta Services are not considered “Services” under this Agreement; however, all restrictions, Obo’s reservation of rights and Your obligations concerning the Service, and use of any Third Party Services shall apply equally to Your use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire upon the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. We may discontinue Beta Services at any time in Our sole discretion and may never make them generally available. We will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. Billing & Payments
3.1 Fees and Taxes. Customer agrees to pay all fees and charges specified in their Order. Subscription licenses to the Services, any Obo Applications, and associated fees incurred are non-cancelable and non-refundable. Overdue charges will accrue interest monthly at the rate of 1.5% of the then-outstanding unpaid balance, or the maximum rate permitted by law, whichever is lower. Charges must be paid in advance, either annually or in accordance with any different billing period stated in the Order. All payments are due and payable either within 30 days from the date of Obo’s invoice or such other period, if any, stated in the Order. All fees and charges quoted are exclusive of applicable taxes and duties, including any applicable sales and use tax. Customer is responsible for paying any taxes assessed based on Customer’s purchases under the Agreement. Any fees and payment terms for Obo Applications not included in the Order will be as set forth on the access page for such Obo Applications.
3.2 Credit Card Payments. If Customer is permitted to pay by credit card, Customer: (i) will provide Obo with valid credit card information, (ii) hereby authorizes Obo to charge such credit card for all items listed in the Order for the initial Subscription Term, and any renewal term(s). Such charges must be paid in advance, either annually or in accordance with any different billing frequency stated in the applicable Order. Customer is responsible for providing complete and accurate billing and contact information and notifying Obo in a timely manner of any changes to such information.
3.3 Future Functionality. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written statements made by Obo regarding future functionality or features.
4. Intellectual Property Rights
4.1 Intellectual Property Rights. Each Party shall retain all rights, title and interest in and to all its respective patents, inventions, copyrights, trademarks, domain names, trade secrets, know-how and any other intellectual property and/or proprietary rights (collectively, “Intellectual Property Rights”). The rights granted to You, Agents and End-Users to use the Service(s) under this Agreement do not convey any additional rights in the Service(s) or in any Intellectual Property Rights associated therewith. Subject only to limited rights to access and use the Service(s) as expressly stated herein, all rights, title and interest in and to the Services and all hardware, Software and other components of or used to provide the Services, including all related Intellectual Property Rights, will remain with Obo and belong exclusively to Obo. Obo shall have a fully paid, royalty-free, worldwide, transferable, sub-licensable (through multiple layers), assignable, irrevocable and perpetual license to implement, use, modify, commercially exploit, and/or incorporate into the Services or otherwise use any suggestions, enhancement requests, recommendations or other feedback We receive from You, Agents, End-Users, or other third parties acting on Your behalf. Obo’s other product and service names and logos used or displayed in or on the Services are registered or unregistered trademarks of Obo (collectively, “Marks”), and You may only use applicable Marks in a manner permitted by Our Trademark Usage Guidelines to identify You as a Subscriber.
4.2 License to Services, Obo Applications and Obo Content. Subject to Customer’s continued compliance with this Agreement, including timely payment of the fees set forth in the applicable Order, Obo grants Customer a limited, revocable, non-exclusive, non-sub licensable, non-transferrable license to do the following solely during the Subscription Term:
(i) Access and use the Services listed on the Order for Your internal business purposes, which does not include the provision of services for the benefit of third parties. You may not access or use any Service in order to monitor its availability, performance, or functionality for competitive purposes.
(ii) Use any applicable Obo Applications listed on the Order (or on an access page from Obo) that You have licensed, solely in connection with Your permitted use of the applicable Services.
(iii) Use Obo Content, solely in connection with Your permitted use of the Services.
(iv) Use the API(s) in accordance with descriptions provided in Obo documentation.
4.3 License Restrictions. The grant of rights to You in Section 4.2 is subject to the following restrictions and limitations: You may not, and may not permit any third party to: (a) reverse engineer (except to the extent specifically permitted by statutory law), decompile, disassemble or otherwise attempt to discover source code, object code or underlying structures, ideas or algorithms of the Services, the Obo Software, the Obo Applications, the Obo Content or any software, documentation or data related to the Services, the Obo Software, the Obo Applications or Obo Content, (b) modify, translate or create derivative works based on the Services, the Obo Software, the Obo Applications or Obo Content, (c) use the Services, the Obo Software, the Obo Applications or Obo Content for timesharing or service bureau purposes, or for any purpose other than its own internal purposes; or (d) use the Services, the Obo Software, the Obo Applications or Obo Content other than in accordance with the Agreement and in compliance with all applicable laws and regulations (including but not limited to any applicable privacy and intellectual property laws). Notwithstanding the foregoing, if any Obo Application is provided to You under a separate license agreement that grants Customer more permissive or broader rights with respect to such Obo Application (e.g., a separate license agreement that is provided to Customer as part of the provisioning process for such Obo Application), then that separate license agreement, and not the Agreement, will govern Customer’s installation and use of such Obo Application (but, for clarity, the Agreement will apply to all other Obo Applications).
5. Customer Content
5.1 Ownership. By submitting or posting Customer Content on the Services, Customer is representing that Customer is the owner of such materials and/or has the necessary rights, licenses, and authorization to distribute it.
6. Cancellation and Termination
6.1 Term and Renewal. This Agreement shall expire upon the expiration or termination of Your account or subscription to a Service. Unless indicated otherwise in the Order, the Subscription Term and the Agreement will automatically renew for: an additional period of time equal to the length of the initial Subscription Term, unless one party notifies the other of its intent not to renew at least one (1) day in advance of the expiration of the Subscription Term or then-current renewal period.
6.2 Termination. Either Party may elect to terminate your Account and subscription to a Service as of the end of your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless your Account and subscription to a Service is so terminated, your subscription to a Service (including any and all deployed Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in an Order, the subscription fees applicable to Your subscription to a Service for any subsequent Subscription Term shall be Obo’s standard subscription fees for the Service Plan and deployed Services to which You have subscribed or which You have deployed as of the time the subsequent Subscription Term begins.
6.3 Refunds or Credits. No refunds or credits for Subscription Charges or other fees or payments will be provided if You elect to terminate Your subscription to the Service or cancel prior to the end of Your then effective Subscription Term.
6.4 Charges and Payments. Except for Your termination under Section 6.6, if You terminate your subscription to a Service or cancel your Account prior to the end of your Subscription Term or Obo effects such termination or cancellation pursuant to Sections 2, 6.5 and 6.6, in addition to other amounts You may owe Obo, You must immediately pay any unpaid Subscription Charges associated with the remainder of your Subscription Term. This amount will not be payable in the event You terminate your subscription to a Service or cancel your Account as a result of a material breach of this Agreement by Obo, provided that You give advance notice of such breach to Obo and afford Obo not less than thirty days to reasonably cure such breach as provided for in Section 6.5 herein.
6.5 Violations. Obo reserves the right to modify, suspend or terminate the Services (or any part thereof), your Account or your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable and discard any Service Data if Obo believes that You, Agents or End-Users have violated this Agreement or infringed Obo’s copyrights. Unless legally prohibited from doing so, Obo will use commercially reasonable efforts to contact You directly via email to notify you when taking any of the foregoing actions. Obo shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension or discontinuation of your rights to access and use the Services. Any suspected fraudulent, abusive, or illegal activity by You, Agents or End-Users may be referred to law enforcement authorities at Obo’s sole discretion.
6.6 Material Breach. A Party may terminate this Agreement for cause (a) upon thirty days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. If this Agreement is terminated by You in accordance with this section, Obo will, to the extent permitted by applicable law, refund You any prepaid fees covering the remainder of the Subscription Term after the effective date of termination. If this Agreement is terminated by Obo in accordance with this section, You will pay any unpaid fees covering the remainder of the Subscription Term pursuant to all applicable Order Forms. In no event will termination relieve You of your obligation to pay any fees payable to Obo for the period prior to the effective date of termination.
6.7 Service Data. Upon request by You made within thirty days after the effective date of termination or expiration of this Agreement, Obo will make your Service Data available to You for export or download. After such 30-day period, Obo will have no obligation to maintain or provide any Service Data, and will have the right to delete or destroy all copies of Service Data in Obo’s systems or otherwise in Obo’s possession or control, unless prohibited by law.
7.1 Confidential Information. Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each Party may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to the employees and/or non-employee service providers and contractors who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section 7.1 shall supersede any non-disclosure agreement by and between the Parties and such agreement shall have no further force or effect, unless such non-disclosure agreement specifically references that it supersedes this Section 7.1.
8. Representations, Warranties, and Disclaimers
8.1 Representations. Each Party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2 Warranties. Obo warrants that during an applicable Subscription Term (a) this Agreement and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Service Data; and (b) the Services will perform materially in accordance with the applicable Documentation. For any breach of a warranty above, Your exclusive remedies are those described in Section 6.6 herein.
8.3 DISCLAIMERS. EXCEPT AS SPECIFICALLY SET FORTH IN SECTION 8.2, THE SITES AND THE SERVICES, INCLUDING ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND TO THE FULLEST EXTENT PERMITTED BY LAW, AND OBO EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. YOU ACKNOWLEDGE THAT OBO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, ERROR-FREE, OR FREE FROM VIRUSES OR OTHER MALICIOUS SOFTWARE, AND NO INFORMATION OR ADVICE OBTAINED BY YOU FROM OBO OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
9. Limitation of Liability
9.1 LIMITATIONS.IN NO EVENT WILL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ANY OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMONT PAID BY YOU AND YOUR AFFILIATES HEREUNDER FOR SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT YOUR OBLIGATIONS UNDER THE “PAYMENTS” SECTION ABOVE, AND WILL NOT BE DEEMED TO LIMIT YOUR RIGHTS UNDER OBO’S SERVICE LEVEL SCHEDULE.
9.2 DAMAGES. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER THE ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY’S OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
9.3 JURISDICTIONS. IN JURISDICTIONS THAT DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, TO THE EXTENT SUCH A LAW APPLIES TO YOU, SOME OR ALL OF THE EXCLUSIONS OR LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IN THESE JURISDICTIONS, OBO’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
9.4 Exclusions. Any claims or damages that You may have against Obo shall only be enforceable against Obo and not any other entity or its officers, directors, representatives or agents.
10.1 Indemnification by Obo. Obo will defend You, and pay all damages (including attorneys’ fees and costs) finally awarded against You, or that are agreed to in a court-approved settlement, to the extent a claim, demand, suit or proceeding is made or brought against You by a third party (including those brought by the government) alleging that the Obo Software infringes or misappropriates such third party’s United States patent, copyright, trademark or trade secret (an “IP Claim”), provided that You: (i) provide Obo with prompt written notice of the Claim, (ii) give Obo sole control of the defense and settlement of the Claim (except that Obo may not settle any Claim that requires any action or forbearance on Your part without Your prior consent, which You will not unreasonably withhold or delay), and (iii) give Obo all reasonable assistance, at Obo’s expense. Obo will have no obligation under the foregoing provision to the extent a Claim arises from Your breach of the Agreement, Customer Content, Third Party Content, Obo Content or the combination of the Obo Software with: (a) Customer Content, (b) Third Party Content (c) any software other than the Obo Software, or (d) any hardware or equipment. Obo may in its sole discretion and at no cost to You: (1) modify any Service and/or Obo Software so that it no longer infringes or misappropriates a third party right, (2) obtain a license for Your continued use of the Obo Software, in accordance with the Agreement, or (3) terminate this Agreement and refund You any prepaid fees covering the unexpired Subscription Term. The provisions of this Section 10.1 state the sole, exclusive, and entire liability of Obo to You and constitute Your sole remedy with respect to an IP Claim brought by reason of access to or use of a Service by You, Agents or End-Users.
10.2 Your Indemnity of Obo. Unless expressly prohibited by applicable law, You will indemnify and hold Obo harmless against any claim brought by a third party against Obo arising from or related to use of a Service by You, Agents or End-Users in breach of this Agreement or matters for which You have expressly agreed to be responsible pursuant to this Agreement; provided (a) Obo shall promptly notify You of the threat or notice of such claim; (b) You will have the sole and exclusive control and authority to select defense attorneys, and defend and/or settle any such claim (however, You shall not settle or compromise any claim that results in liability or admission of any liability by Obo without Obo’s prior written consent); and (c) Obo fully cooperates with You in connection therewith.
11. Import & Export Control
11.1 Availability. The Services, the Obo Software, and/or Obo Content, or any feature or part thereof, may not be available for use in all jurisdictions, and Obo makes no representation that the Services, the Obo Software, and/or Obo Content, or any feature or part thereof is appropriate or available for use in any particular jurisdiction. To the extent You choose to access and use any Service, the Obo Software, and/or Obo Content, You do so at Your own initiative and at Your own risk, and You are responsible for complying with any applicable laws, rules, and regulations with respect to such access and use.
11.2 Customs and Export Control Laws. You, Agents, or End-Users use of the Services, the Obo Software, and/or Obo Content is subject to the customs and export control laws and regulations of the United States and may also be subject to the customs and export laws and regulations of other countries. You, Agents, and End-Users will fully comply with all applicable customs and export control laws and regulations of the United States and any other country where You use the Services, the Obo Software, and/or Obo Content. You certify that You, Agents, and End-Users are not on any of the relevant U.S. Government Lists of prohibited persons, including but not limited to the Treasury Department’s List of Specially Designated Nationals, and the Commerce Department’s List of Denied Persons or Entity List. You further certify that You, Agents, and End-Users will not export, re-export, ship, transfer or otherwise use the Services, the Obo Software, and/or Obo Content in any country subject to an embargo or other sanction by the United States, including, without limitation, Iran, Syria, Cuba, Sudan and North Korea, and that You will not use the Services, the Obo Software, and/or the Obo Content for any purpose prohibited by U.S. laws, including, but not limited to, nuclear, chemical, missile or biological weapons related end uses. You, Agents, and End-Users are prohibited from sending to Your account any These assurances and commitments will survive termination of this Agreement.
12. Other Terms
12.1 Anti-Corruption. Obo uses diligent efforts to implement and maintain programs for its compliance with anti-corruption and anti-bribery laws. You agree that You have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any Obo employees or agents in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction. If You learn of any violation of the above restriction, You will use reasonable efforts to promptly notify Obo’s Legal Department at firstname.lastname@example.org.
12.2 Governing Law. This Agreement shall be governed by the laws of the State of California, without reference to conflict of laws principles. Any disputes under this Agreement shall be resolved in a court of general jurisdiction in Santa Clara County, California. You hereby expressly agree to submit to the exclusive personal jurisdiction of this jurisdiction for the purpose of resolving any dispute relating to this Agreement or access to or use of the Services by You, Agents or End Users.
12.3 Independent Contractors; No Third Party Beneficiaries. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. There are no third-party beneficiaries of this Agreement. You represent that You have the authority to bind Yourself, Agents, or End-Users to the terms and conditions herein.
12.4 Amendment; Severability. This Agreement may only be amended by a written amendment signed by both parties, unless otherwise provided herein. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, invalid or unenforceable, the provision will be modified by the court and interpreted to best accomplish the objectives and intent of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in effect. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement but the remainder of the Agreement will remain in full force and effect.
12.5 Assignment. You may not assign, delegate or sublicense any of Your rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of Obo.
12.6 No waiver. The failure of either party to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such right or provision or of any other right or provision. All waivers must be in a signed writing to be effective.
12.7 Force Majeure. Obo and its Affiliates, subsidiaries, officers, directors, employees, agents, partners and licensors will not be liable for any delay or failure to perform any obligation under this Agreement where the delay or failure results from any cause beyond Obo’s or its Affiliates’, officers’, directors’, employees’, agents’, partners’, or licensors’ reasonable control, including, without limitation, acts of God, labor disputes or other industrial disturbances, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
12.9 Notices and Consent to Electronic Communications. You consent to receiving electronic communications and notifications from Obo in connection with You, Agents, or End-Users use of the Services and the Agreement. You agree that any such communication will satisfy any applicable legal communication requirements, including that such communications be in writing. Obo may provide You with notices regarding the Services, including changes to this Agreement, by email to the email address of Your administrator (and/or other alternate email address associated with Your Account if provided), or by regular mail. Notices that are provided by email will be effective when Obo sends the email. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your account when Obo sends the email, whether or not You actually receive the email. In the event You do not wish to accept any material change to the Services or to this Agreement, You shall have the right, as Your sole remedy, to terminate this Agreement within thirty days of Obo’s notice of such change, and, if You exercise such termination right, Obo shall provide a pro rata refund to You equal to the amount fees pre-paid by You for the Service that corresponds to the period after the date of such termination for the Term.
12.10 Survival. The following sections will survive the termination or expiration of the Agreement: 1, 4, 7-12.