This section of the agreement only applies to Octonius for Enterprise customers.OverviewThis Octonius for Enterprise Agreement (the “Agreement”) is between Octonius Inc. (“Octonius”) and Customer or End User, as applicable. This Agreement governs access to and use of the Octonius for Enterprise services, Octonius Enterprise Plan service, and any client software (the “Services” or “Octonius for Enterprise” or “Octonius Enterprise Plan”).
The Customer ordering the Services: If you are ordering the Services, then by creating account, signing your contract for the Services or using Octonius for Enterprise, you agree to this Agreement as a “Customer.” If you are agreeing to this Agreement for use by an organization, you are agreeing to this Agreement on behalf of that organization. You must have the authority to bind that organization to this Agreement, otherwise you must not sign up for the Services.End Users: If you are using the Services as an “End User”, then by creating account or using Octonius for Enterprise you agree to this Agreement (especially note sections 1 and 13) and the Octonius Terms of Service at http://www.octonius.com/terms. To the extent this Agreement conflicts with the Octonius Terms of Service, this Agreement controls. Please take note that in this Agreement, you are agreeing that your Administrator may be able to control account information and access to your Octonius for Enterprise account.By using the Services you agree to be bound by these Terms.
End UserAccounts: When joining a Octonius for Enterprise account, an End User may join with a new account or convert an existing personal account into a Octonius for Enterprise account. It’s important to note that once an End User’s personal account becomes a Octonius for Enterprise account, it will be subject to the Administrator’s control. End Users must use the Services in compliance with any employment obligations and the Customer’s terms and policies. Administrator Control: An End User’s Administrator may have the ability to access, disclose, restrict, or remove information in or from an End User’s Octonius for Enterprise account. Administrators may also have the ability to monitor, restrict, or terminate access to an End User’s Octonius for Enterprise account. An End User may not be able to disassociate his or her Octonius for Enterprise account from the organization.
Third Party Requests:
“Third Party Request” means a request from a third party for records relating to an End User’s use of the Services including information in or from an End User or Customer Octonius for Enterprise account. Third Party Requests may include valid search warrants, court orders, or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.Customer is responsible for responding to Third Party Requests via its own access to information. Customer will seek to obtain information required to respond to Third Party Requests and will contact Octonius only if it cannot obtain such information despite diligent efforts.Octonius will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third Party Request, to: (A) promptly notify Customer of Octonius’ receipt of a Third Party Request; (B) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third Party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third Party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third Party Request, then Octonius may, but will not be obligated to do so.Communication Setting Management. Customer is responsible for maintaining all “opt-in/out” settings for communications from or via Octonius for all of Customer’s End Users. Customer will use reasonable efforts to answer any requests from End Users regarding such settings.
Provision of Services: Customer may access and use the Services made available by Octonius under this Agreement.Facilities and Data Transfer: Octonius will use commercially reasonable efforts to ensure that all facilities used to store and process Customer Data meet commercially reasonable security standards. By using the Services, Customer consents to transfer, syncing, and conversion of Customer Data. “Customer Data” means any data and content is transmitted (transferred, sync’d) via the Services by Customer or End Users.Modifications to the Services: Octonius may update the Services from time to time. If Octonius changes the Services in a manner that materially reduces their functionality, Octonius will inform Customer, unless Customer has opted-out of communications of that type from Octonius.Limitations on Use of Services: Octonius may impose reasonable limitations on bandwidth and sync usage for the Services.
Customer will, at its own expense, respond to questions and complaints from End Users or third parties relating to use of the Services. Customer will use reasonable efforts to resolve support issues before escalating them to Octonius.
Of End User Accounts by Octonius: If an End User (i) violates this Agreement or the Octonius Terms of Service; (ii) uses the Services in a manner resulting in excessive support requests; or (iii) uses the Services in a manner that Octonius reasonably believes will cause it liability, then Octonius may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Octonius may do so.Security Emergencies: Notwithstanding anything in this Agreement, if there is a Security Emergency then Octonius may automatically suspend use of the Services. Octonius will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third party access to the Services.
Intellectual Property Rights
Reservation of Rights: THIS AGREEMENT DOES NOT GRANT Octonius ANY RIGHTS TO CUSTOMER’S OR END USERS’ FILES OR THE INTELLECTUAL PROPERTY RIGHTS EMBODIED IN THOSE FILES EXCEPT FOR THE LIMITED RIGHTS EXPRESSLY SET FORTH IN THIS AGREEMENT THAT ARE NEEDED TO RUN THE SERVICES. This Agreement does not grant Customer or End Users (i) any rights to the Intellectual Property Rights in the Services or (ii) any rights to use the Octonius trademarks, logos, domain names, or other brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights, and other similar rights.Limited Permission: Octonius may need Customer permission to do things that Customer or End User ask Octonius to do with Octonius for Enterprise accounts, for example, transferring and downloading files at Customer or End User’s direction. This includes product features visible to Customer or End User, for example, convert documents from Google Docs format to MS Office. It also includes design choices made to technically administer the Services, for example, how the Service redundantly backs up data to keep it safe. Customer grants Octonius the permissions Octonius needs to do those things solely to provide the Services and for Octonius to meet its obligations and exercise its rights under this Agreement. This permission also extends to third parties Octonius works with to provide the Services.Suggestions: While we appreciate it when users send us feedback, we may, at our discretion and for any purpose, use, modify, and incorporate into our products and services, license and sublicense, any feedback, comments, or suggestions Customer or End Users send Octonius or post in Octonius’s forums without any obligation to Customer or End Users.Customer List: Octonius may include Customer’s name in a list of Octonius customers on the Octonius website.
Third Party Services
If Customer uses any third-party service with the Services, (a) the service may access or use Customer’s or End User’s information; (b) Octonius will not be responsible for any act or omission of the third party, including the third party’s use of Customer’s or End User’ Disclaimers
THE SERVICES ARE PROVIDED “AS IS.” TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER Octonius NOR CUSTOMER MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE, OR NONINFRINGEMENT. Octonius MAKES NO REPRESENTATIONS ABOUT ANY CONTENT OR INFORMATION IN OR FROM AN END USER OR CUSTOMER SERVICES ACCOUNT. Octonius is not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information in or from an End User or Customer Services account. Octonius has no responsibility or liability for the deletion or failure to store any information in or from an End User or Customer Services account.
Fees & PaymentFees: Customer will pay, and authorizes Octonius to charge using Customer’s selected payment method, for all applicable fees. If Customer enrolls in the annual billing plan, fees are refundable within the first 30 days of the Services. Otherwise, fees are non-refundable except as required by law. Customer is responsible for providing complete and accurate billing and contact information to Octonius. Octonius may suspend or terminate the Services if fees are 30 days past due.Auto Renewals and Trials: IF CUSTOMER’S ACCOUNT IS SET TO AUTO RENEWAL, OR IS IN A TRIAL PERIOD, Octonius MAY AUTOMATICALLY CHARGE AT THE END OF THE TRIAL, OR FOR THE RENEWAL, UNLESS CUSTOMER NOTIFIES Octonius THAT CUSTOMER WANTS TO CANCEL OR DISABLE AUTO RENEWAL. Octonius may revise Service rates by providing Customer at least 30 days notice prior to the next charge. Taxes: Customer is responsible for all taxes. Octonius will charge tax when required to do so. If Customer is required by law to withhold any taxes, Customer must provide Octonius with an official tax receipt or other appropriate documentation. Term & TerminationTerm: This Agreement will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated. Termination for Breach: Either Octonius or Customer may suspend performance or terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its Enterprise operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days. Termination at Will: Customer may terminate this Agreement at any time by disabling Customer’s Services account via the Services administrative console. End User Termination: End Users may stop using the Services at any time. Effects of Termination: If this Agreement terminates: (i) the rights granted by Octonius to Customer will cease immediately (except as set forth in this section); (ii) the rights granted by Octonius to End User will cease immediately; (iii) Octonius may provide Customer access to its account at then-current rates so that Customer may export its information; and (iv) after a commercially reasonable period of time, Octonius may delete any data relating to Customer’s account. The following sections will survive expiration or termination of this Agreement: 1(c) (Administrator Control), 2(e) Third Party Requests, 6 (Intellectual Property Rights), 8 (Disclaimers), 9 (Fees & Payment), 10(d) (End User Termination), 10(e) (Effects of Termination), 11 (Indemnification), 12 (Limitation of Liability), and 13 (Miscellaneous). IndemnificationBy Customer: Customer will indemnify, defend, and hold harmless Octonius from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement or Acceptable Use Policy; or (iii) use of the Services by Customer’s End Users.By Octonius: Octonius will indemnify, defend, and hold harmless Customer from and against all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a claim by a third party against Customer to the extent based on an allegation that Octonius’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, U.S. patent, or trademark right of the third party. In no event will Octonius have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by Octonius, and (ii) any content, information, or data provided by Customer, End Users or other third parties.Possible Infringement: If Octonius believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then Octonius may: (i) obtain the right for Customer, at Octonius’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Octonius does not believe the options described in this section are commercially reasonable then Octonius may suspend or terminate Customer’s use of the impacted Services (with a pro- rata refund of pre-paid fees for the Services).General: The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party has full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE Octonius AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.Limitation of LiabilityLimitation on Indirect Liability: EXCEPT FOR Octonius OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER Octonius NOR CUSTOMER WILL BE LIABLE FOR LOST REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES, EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. Limitation on Amount of Liability: Octonius’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $10,000 OR THE AMOUNT PAID BY CUSTOMER TO Octonius HEREUNDER DURING THE TWELVE MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
Miscellaneous Terms Modification: Octonius may revise this Agreement from time to time and the most current version will always be posted on the Octonius for Enterprise website. If a revision, in Octonius’s sole discretion, is material, Octonius will notify you (for example to the email address associated with the applicable account). Other revisions may be posted to Octonius’s blog or terms page, and you are responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, you agree to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may cancel the Services. If the revision is material and Customer cancels before the effective date of the revision, Octonius will refund a pro-rated amount of any fees Customer paid in advance for the Services for the unused portion of the term. If End User does not agree to the revised Agreement terms, End User must stop using the Octonius for Enterprise account. Customer may grant approvals, permissions, extensions and consents by email. Entire Agreement: The Agreement, including Customer’s invoice, the Octonius Terms of Service constitute the entire agreement between you and Octonius with respect to its subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the invoice, the Agreement, the Octonius Terms of Service,Governing Law: THE AGREEMENT AND SERVICES WILL BE GOVERNED BY CALIFORNIA LAW EXCEPT FOR ITS CONFLICTS OF LAWS PRINCIPLES. ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE SERVICES MUST BE LITIGATED EXCLUSIVELY IN THE FEDERAL OR STATE COURTS OF SAN FRANCISCO COUNTY, CALIFORNIA, AND THE PARTIES CONSENT TO VENUE AND PERSONAL JURISDICTION THERE. Severability: Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and remaining provisions of the Agreement will remain in full effect.Notice: Notices must be sent via first class, airmail, or overnight courier and are deemed given when received. Notices to you may also be sent to the applicable account email address, and are deemed given when sent. Notices to Octonius must be sent to Octonius, Inc., 950 Page Mill Road, Palo Alto, CA 94304, with a copy to the Legal Department. Waiver: A waiver of any default is not a waiver of any subsequent default.Assignment: Customer may not assign or transfer any part of this Agreement without the written consent of Octonius. Octonius may not assign this Agreement without providing notice to Customer, except Octonius may assign this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void. No Agency: Octonius and Customer are not legal partners or agents, but are independent contractors. Force Majeure: Neither Octonius nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance). No Third-Party Beneficiaries: There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third party beneficiaries to Customer’s rights under this Agreement.Export Restrictions: The export and re-export of data via the Services may be controlled by the United States Export Administration Regulations. The Services may not be used in Cuba; Iran; North Korea; Sudan; or Syria or any country that is subject to an embargo by the United States and Customer must ensure that Administrators and End Users do not use the Services in violation of any export restriction or embargo by the United States. In addition, Customer must ensure that the Services are not provided to persons on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals.
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