Updated as of 24 May 2018
Thank you for Your interest in OpsGenie. This Subscription Services Agreement, the Acceptable Use Policy, the Data Processing Addendum, the Security Controls, and the Services Level Agreement and System Support Plan (collectively, the “Agreement”) will govern Your subscription to OpsGenie’s Services. If You register for a Trial Services Subscription, then the applicable provisions of this Agreement will also govern that Trial Services Subscription. Under this Agreement, “OpsGenie”, “We”, “Our” and “Us” refer to OpsGenie, Inc., a Delaware corporation with its principal place of business located at 450 W Broad St. Suite 421, Falls Church, VA 22046.
This Agreement is a legal agreement between You and OpsGenie. By accepting this Agreement electronically (for example, by clicking “Accept” or otherwise executing an electronic order), or by accessing or using the Services, You are entering into this Agreement and agree to its terms and conditions. If You are accepting and agreeing to this Agreement on behalf of a company or other legal entity, You represent and warrant that: (a) You have full legal authority to bind Your company or other legal entity and its Affiliates to this Agreement; (b) You have read and understand the terms and conditions of this Agreement; and (c) You agree on behalf of Your company or other legal entity and its Affiliates to this Agreement.
If You do not agree to the terms and conditions of this Agreement, or do not have the legal authority to enter into this Agreement on behalf of Your company or other legal entity, then You must not accept this Agreement and shall not access or use the Services.
For the purposes of this Agreement, “Customer”, “You” or “Your” means, in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which You are accepting this Agreement.
“Acceptable Use Policy” or “AUP” means OpsGenie’s Acceptable Use Policy located at http://www.opsgenie.com/tos/aup, which We may update from time to time, the provisions of which are incorporated into to this Agreement.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a Party. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests or equity interests of the Party.
“Brand Features” means trademarks, service marks, logos, trade names and other distinctive brand features.
“Claim” means any claim, action, suit, proceeding or demand made by a third party against any OpsGenie Indemnitee.
“Confidential Information” means any information that: (a) is identified in this Agreement as Confidential Information; (b) is clearly marked or otherwise clearly designated as confidential, a trade secret or proprietary; or (c) would be reasonably understood by the Party receiving such information to be the confidential, trade secret or proprietary information of the Disclosing Party given the nature of such information and the circumstances of its disclosure. As between OpsGenie and You: (i) the Services and OpsGenie Technology and Content will be OpsGenie Confidential Information; and (ii) the Customer Data will be Your Confidential Information.
“Customer Data” means all confidential or proprietary electronic data, materials and content owned by or otherwise in the rightful possession of You, which You originate and store, from time to time, on the Services.
“Customer Indemnitee” means You or any of Your directors, officers, employees, contractors, representatives or agents.
“Data Processing Addendum” or “DPA” means OpsGenie’s Data Processing Addendum located at http://www.opsgenie.com/tos/dpa, which We may update from time to time, the provisions of which are incorporated into to this Agreement.
“Disclosing Party” means the Party disclosing its Confidential Information to the other Party.
“Intellectual Property Rights” means all current and future patents, copyrights, trade secrets, trademarks and moral rights laws, and other similar rights, throughout the world.
“OpsGenie Indemnitee” means OpsGenie or any of OpsGenie’s directors, officers, employees, contractors, representatives or agents.
“OpsGenie Technology and Content” means all underlying software, technology, data, content, materials and information enabling or providing the Services.
“Party” means OpsGenie and Customer each individually, and “Parties” means OpsGenie and Customer jointly.
“Receiving Party” means the Party receiving the Confidential Information of the other Party.
“Security Controls” means OpsGenie’s Security Controls located at https://www.opsgenie.com/tos/security, which We may update from time to time, the provisions of which are incorporated into this Agreement.
“Service Level Agreement and System Support Plan” means OpsGenie’s Service Level Agreement and System Support Plan located at http://www.opsgenie.com/tos/sla, which We may update from time to time, the provisions of which are incorporated into this Agreement.
“Services” means the IT operations management solutions and tools provided by OpsGenie as a software-as-a-service, including hosted alert and notifications management services and on-call scheduling services.
“Subscription Charges” means all fees and charges payable by You for the Subscription Plans, which will be as specified on OpsGenie’s website at the time of Your purchase and renewal of the Your Services subscription.
“Subscription Plan” means the subscription plan, and the Services functionality and services associated with such subscription plan, for which You subscribe, the details of which will be as posted on OpsGenie’s website at the time of Your purchase and renewals of the Services subscription.
“Subscription Term” means the subscription period of Your Services subscription (excluding all Trial Services Subscriptions).
“Subscription Upgrade” means an upgrade to a Subscription Plan or increase in the number of Users during a Subscription Term.
“Taxes” means taxes, duties, levies, tariffs and other governmental charges (including, without limitation, VAT).
“Third Party Services” means third party products and services that are provided by entities or individuals other than OpsGenie.
“Trial Services Subscription” means a trial subscription for the Services, for which You have registered on OpsGenie’s website.
“Trial Services Subscription Term” means the fourteen (14) day period commencing from the date of activation of the Trial Services Subscription.
“User” means any individual employee or agent of Customer authorized by You to directly access and use the Services through a User Account.
“User Account” means a user and/or administrator login account for the Services received under a Subscription Plan, which is established for a User under a unique username and password.
2. TRIAL SERVICES
2.1 Trial Services Subscription; License. If You have registered for a Trial Services Subscription, then We will provide You access to and use of the Services during the Trial Services Subscription Term with no Subscription Charge. During the Trial Services Subscription Term, We grant to You a personal, limited, non-exclusive, non-assignable, non-transferable and non-sublicensable license to access and use the Services solely for Your internal evaluation purposes. Such license is granted under the terms of Section 4.2 (“Prohibitions and Restrictions”) and Section 5 (“Access and Use”). We will determine the number of Users that You may authorize to access and use the Services during the Trial Subscription Term in Our sole discretion. We may increase or decrease such authorized number of Users at any time. We may terminate a Trial Services Subscription at any time for any reason or no reason by notifying You of such termination (which may be sent by email or through the OpsGenie user interface).
2.2 Conflicting Terms. In the event of a conflict between this Section 2 (“Trial Services”) and any other portion of this Agreement, this Section 2 (“Trial Services”) will control solely with respect to the Services provided under a Trial Services Subscription. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference (and in particular into this Section 2) and are legally binding.
3.1 Subscription. You are purchasing a temporary subscription to access and use the Services under the selected Subscription Plan and/or Trial Services Subscription, contingent upon Your compliance with the licenses, restrictions, prohibitions, warranties, obligations and other provisions of this Agreement. If You are, or any User is, in violation of any such licenses, restrictions, prohibitions, warranties, obligations or provisions, then We may, in Our sole discretion and upon notice to You (which We may send to You by email), suspend any or all of the Services for as long as You remain in violation of any of these licenses, restrictions, prohibitions, warranties, obligations or provisions.
3.2 Subscription Term. Depending on Your Subscription Plan purchase, Your initial Subscription Term will be for a period of one month or one year, unless stated otherwise on Your order or registration for the Services. Your Subscription Term will automatically renew for subsequent Subscription Terms of the same duration as Your initial Subscription Term, unless a Party provides the other Party with a written notice (which may be sent by email or through the OpsGenie user interface) of its intent not to renew the Services subscription at least thirty (30) days prior to the end of the then-current Subscription Term. For clarity, this Agreement does not allow for termination for convenience by You, and no refunds will be provided for early termination except as may be expressly set forth otherwise in this Agreement. The Subscription Charges applicable to Your Subscription Plan for any renewed Subscription Term will be the Subscription Charges for the Subscription Plan to which You have subscribed that are published on OpsGenie’s website as of the time such subsequent Subscription Term will commence. You are responsible for checking OpsGenie’s website for the current Subscription Charges.
3.3 Services Levels; System Support. We shall use commercially reasonable efforts during the Subscription Term to provide to You (a) the Services in accordance with the service levels, and (b) the phone- and email-based support, each as set forth in the Service Level Agreement and System Support Plan. Your sole and exclusive remedy, and OpsGenie’s sole and exclusive liability, for any failure of the Services to meet the service levels set forth in the Service Level Agreement and System Support Plan will be the service level credits expressly set forth therein.
3.5 Subscription Upgrades. If You purchase a Subscription Upgrade during a Subscription Term, any incremental Subscription Charges associated with such Subscription Upgrade shall be prorated over the remaining period of the Subscription Term. No refunds or credits for Subscription Charges or other fees or payments will be provided to You if You elect to downgrade the Subscription Plan during a Subscription Term. However, You may elect to renew the Services at a downgraded level by notifying Us in writing (which You may send by email) at least thirty (30) days prior to the start of the next Renewal Term. You acknowledge and agree that downgrading the Subscription Plan may cause loss of content, features or capacity of the Services as available to You, and We will not be liable to You in any manner for such loss.
3.6 Services Demands. We reserve the right to contact You about special pricing if You maintain an exceptionally high number of alerts, or create other excessive stress on the Services. If You do not agree to any special pricing requested by Us, then either Party may immediately terminate all applicable Subscription Terms by sending written notice to the other Party (which may be sent by email) and, except for any unpaid amounts owed for that portion of the Services performed up until the date of termination, You will not be obligated to pay any further Subscription Charges to Us. We will provide You with a refund of any prepaid expenses covering the period after the date of termination. For clarity, this Agreement does not allow for termination for convenience by You, and no refunds will be provided for early termination except as may be expressly set forth otherwise in this Agreement.
3.7 Third Party Services. If You decide to use Third Party Services, Your access and use of Third Party Services is governed solely by the terms and conditions of the Third Party Services. OpsGenie does not endorse and will not be responsible for any Third Party Services. OpsGenie shall not be liable for any damage or loss caused by or in connection with Your use of any Third Party Services and You irrevocably waive any claim of any kind against OpsGenie with respect to such Third Party Services.
4.1 License Grant. Subject to Your compliance with the terms and conditions of this Agreement, including without limitation payment of all Subscription Charges, We hereby grant to You, during the Subscription Term, a personal, limited, non-exclusive, non-assignable, non-transferable and non-sublicensable license to access and use the Services solely for Your internal business purposes and in accordance with the selected Subscription Plan.
4.2 Prohibitions and Restrictions. You will have no rights in or to the Services except as expressly allowed under this Agreement. You will have no rights to, and shall not (and shall not allow or enable any third party to): (a) rent or lease the Services, or provide access to or use of the Services or any part of the Services on a time-share or service bureau basis; (b) copy, modify, create derivative works of, sublicense, distribute or resell the Services, any portion of the Services or any OpsGenie Technology and Content; (c) decompile, disassemble, translate, reverse engineer or otherwise attempt to extract the source code of any of the Services or OpsGenie Technology and Content (except to the extent such restriction is expressly prohibited by applicable law); or (d) delete or in any manner alter the copyright, trademark or any other proprietary rights notices appearing in or on all or any portion of the Services.
5. ACCESS AND USE
5.1 Access. Access to the Services is restricted to the specified number of individual Users permitted under Your Subscription Plan. You acknowledge and agree that a User Account may only be used by one (1) individual. You shall not (and shall not enable any third party to): (a) set up multiple licensed Users or User Accounts to simulate or act as a single licensed User or User Account; (b) set up or allow multiple users or administrators to share a single licensed unique user or administrator log-in, or (c) otherwise access or use the Services in a manner intended to avoid incurring Subscription Charges or misrepresent the actual number of User Accounts or Users accessing and/or using the Services. You shall keep confidential and not disclose to any third parties, and shall ensure that all Users keep confidential and do not disclose to any third parties, any user identifications, passwords, account numbers and account profiles. You shall notify Us immediately of any lost or stolen user identification or password, any unauthorized use of a User Account, or any other known or suspected breach of security of the Services.
5.3 Acceptable Use. You shall use the Services exclusively for authorized and legal purposes, consistent with all applicable laws, rules, regulations and the rights of others. You shall, and shall ensure that all Users shall, comply with the Acceptable Use Policy when accessing and using the Services.
5.4 Customer Responsibilities. You acknowledge and agree that We do not monitor or police the activities, communications, data or content occurring under Our customers’ access and use of the Services. You, and not OpsGenie, will be responsible for all activities, communications, data and content occurring under Your User Accounts.
6. SUBSCRIPTION CHARGES AND PAYMENT
6.1 Payment. In consideration for OpsGenie providing the Services subscriptions in accordance with this Agreement, You shall pay to Us all applicable Subscription Charges. You shall pay all Subscription Charges within thirty (30) days of the commencement of the Subscription Term. Payment of Subscription Charges shall be made by You in United States dollars. Except as expressly set forth in this Agreement, all payments of Subscription Charges are and will be non-refundable. You are responsible for any bank charges related to Your payment of any Subscription Charges incurred under this Agreement.
6.2 Taxes. All amounts and fees stated or referred to in this Agreement are exclusive of Taxes. You shall be responsible for payment of all Taxes and any related interest and/or penalties resulting from any payments made hereunder, other than any taxes based on OpsGenie’s net income. If We have the legal obligation to pay or collect Taxes for which You are responsible, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority.
6.3 Late Payments. If You fail to pay the Subscription Charges within ten (10) business days of Our notice to You that payment is past due or delinquent, then in addition to Our other remedies, We may suspend Your access to and use of the Services until the overdue payment is received by Us. You shall reimburse Us for the reasonable costs incurred by Us in Our collection of unpaid Subscription Charges, including reasonable attorneys’ fees and expenses.
6.4 Credit Card Payments. If You elect to pay any Subscription Charges by credit card, then You authorize Us, or Our third-party payment processor, to bill Your credit card or other payment instrument in advance on a periodic basis in accordance with the terms of the Services Plan and Your order until the expiration or termination of the Subscription Term, and You further agree to pay any Subscription Charges so incurred.
7. CUSTOMER DATA
7.1 License. You grant Us a non-exclusive right to use the Customer Data for the purposes of operating the Services for You. Subject to applicable laws, rules and regulations, We shall not access or use the Customer Data except as necessary to provide the Services to You.
7.2 Backup. You are solely responsible for securing and backing up Customer Data. Except as expressly set forth in this Agreement, We will not be responsible, to the full extent permitted by law, for any loss, destruction, alteration, unauthorized disclosure or corruption of Customer Data.
7.3 Return. If this Agreement is terminated or expires, then You may provide a written request to Us within thirty (30) days of termination or expiration that We make the Customer Data available to You. Upon receiving such request, We shall make the Customer Data available to You, at Your sole cost and expense, in a standard, generally recognized electronic file format. If, after thirty (30) days following termination or expiration of this Agreement, You have not provided a written request that We make the Customer Data available to You, then We may delete or otherwise destroy all Customer Data on the Services, subject to any requirements under applicable law, rule or regulation to retain any of such data.
7.4 Data Privacy. You represent and warrant to Us that You will obtain and maintain any and all consents from data subjects as required by all applicable laws, rules and regulations, which are necessary for Us to be permitted under such laws, rules and regulations to process the Customer Data, including without limitation Personal Data (as defined in the Data Protection Addendum). To the extent that We process any Personal Data, the terms of the Data Protection Addendum, which forms an integral part of this Agreement, will apply and the Parties shall comply with such terms. We shall maintain administrative, physical and technical safeguards as described in the Security Controls for protection of the security, confidentiality and integrity of Personal Data uploaded to the Services. We shall not materially decrease the overall security of the Services during a Subscription Term. For clarity, nothing in this Agreement (including without limitation the Data Protection Addendum) provides You with any information, audit or inspection rights (including without limitation rights to on-site audits or inspections) except solely to the extent that it becomes necessary for Us grant such rights in order for Us to meet the requirements of any applicable Data Protection Laws (as defined in the Data Protection Addendum). In the event that Our performance of the Services will involve any Restricted Data Transfers (as defined in the Data Protection Addendum), the Parties shall execute the Standard Contractual Clauses (or its successor document) which is annexed to the Data Protection Addendum. In the event of a conflict between any of the provisions of this Agreement and the Data Protection Addendum, the provisions of the Data Protection Addendum will control with respect to the subject matter of the Data Protection Addendum.
8. OWNERSHIP; RIGHTS
8.1 Ownership. As between OpsGenie and You, OpsGenie or its licensors own and will own all rights, titles and interests, including without limitation all Intellectual Property Rights, in or to the Services and OpsGenie Technology and Content. You have no rights in or to the Services except as expressly provided for under this Agreement. As between OpsGenie and You, You own and will own all rights, titles and interests, including without limitation all Intellectual Property Rights, in or to the Customer Data.
8.2 Metadata. Notwithstanding any provision of this Agreement, We may use, store, analyze and disclose metadata resulting from Your use of the Services, only in an anonymized and aggregated form which does not identify You, for the following purposes: (a) for Our own internal, statistical and trend analysis, (b) to develop and improve the Services, and (c) to create and distribute data, reports and other materials regarding access to and use of the Services. As between OpsGenie and You, We will own all rights, titles and interests, including without limitation all Intellectual Property Rights, in or to such metadata.
8.3 Feedback. If You provide any feedback or suggestions to OpsGenie about the Services, then We may use such information without obligation to You. You irrevocably assign to OpsGenie all rights, titles and interests in or to all such feedback and suggestions.
9.1 Use; Protection. While performing this Agreement, each Party may have access to the Confidential Information of the other Party. The Receiving Party shall not use the Disclosing Party’s Confidential Information for any purpose other than for exercising and performing the Receiving Party’s rights and obligations under this Agreement. The Receiving Party shall use the same efforts to protect the Confidential Information of the Disclosing Party that the Receiving Party uses to protect its own Confidential Information of like importance, but in no event shall the Receiving Party take less than all reasonable steps necessary to protect the confidentiality of the Disclosing Party’s Confidential Information and ensure that it is not disclosed or distributed in violation of the terms of this Agreement. The Receiving Party shall ensure that all employees, contractors, representatives or agents that are permitted to access or use any of the Disclosing Party’s Confidential Information are legally bound to comply with confidentiality obligations at least as protective of the Confidential Information as the confidentiality terms of this Agreement.
9.2 Disclosure. The Receiving Party shall not make the Disclosing Party’s Confidential Information available to any third party except to its employees, contractors, representatives or agents who have a need to know such Confidential Information for the Receiving Party to exercise its rights and perform its obligations under this Agreement. Neither Party may disclose the terms and conditions of this Agreement to any third party except to such Party’s advisors, accountants, attorneys, investors (and prospective investors), and prospective acquirers who have a reasonable need to know such information in order to provide their services to the Receiving Party or to explore their potential investment in or acquisition of the Receiving Party. However, such third parties shall not use such information in any manner that will cause the Receiving Party to breach or violate any term or provision of this Agreement, and, before they may access such information, the Receiving Party shall ensure that each such third party has either: (a) executed a binding agreement to keep such information confidential, or (b) is subjected to a professional obligation to maintain the confidentiality of such information. Notwithstanding any of the foregoing, the Receiving Party may disclose the Disclosing Party’s Confidential Information as may be required by law, rule or regulation to be disclosed, but only to the extent and for the purpose of such required disclosure and after providing the Disclosing Party with advance written notice, if reasonably possible, such that the Disclosing Party is afforded an opportunity to contest the disclosure or seek an appropriate protective order.
9.3 Duration. The Receiving Party’s obligations under Section 9.1 (“Use; Protection”) and Section 9.2 (“Disclosure”) with respect to the use, protection and disclosure of the Disclosing Party’s Confidential Information will remain in effect during the term of this Agreement and for a period of three (3) years after expiration or termination of this Agreement, except that with respect to any information that is the Disclosing Party’s trade secret, the Receiving Party will remain under such obligations for as long as such information remains a trade secret.
9.4 Exclusions. A Party will not be obligated under Section 9.1 (“Use; Protection”) or Section 9.2 (“Disclosure”) with respect to the use, protection or disclosure of any information that: (a) is or becomes publicly known through no act or omission of the Receiving Party; (b) was in the Receiving Party’s lawful possession prior to the disclosure; (c) is rightfully disclosed to the Receiving Party by a third party without restriction on disclosure; or (d) is independently developed by the Receiving Party, which such independent development can be shown by written evidence.
10.1 Mutual Warranties. Each Party warrants to the other Party that it has the full power and authority to enter into this Agreement.
10.2 Services Warranties. OpsGenie warrants to You that: (a) the Services, when provided during a Subscription Term, will materially conform to the applicable documentation relating to the operation and use of the Services made available by Us in connection with the Services, if any; and (b) all system support provided under the Service Level Agreement and System Support Plan will be performed in a professional manner consistent with generally accepted industry standards reasonably applicable to the provision of such services.
10.4 Disclaimer. You assume sole responsibility and liability for Your conclusions, actions and/or inactions resulting from Your access and use of the Services. OpsGenie will have no liability for any claims, losses or damages caused by errors or omissions in any information provided to Us by You in connection with the Services or any actions taken by Us at Your direction. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 10 (“WARRANTIES”), OPSGENIE MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, IN CONNECTION WITH THE AGREEMENT OR THE SERVICE, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCURACY OF ANY INFORMATION PROVIDED, OR ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, AND OPSGENIE HEREBY DISCLAIMS ALL SUCH WARRANTIES, WHETHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, OPSGENIE DISCLAIMS ANY WARRANTY, EXPRESS OR IMPLIED, THAT THE SERVICE WILL BE ERROR FREE OR UNINTERRUPTED OR THAT ALL ERRORS WILL BE CORRECTED. NO INFORMATION OR ADVICE OBTAINED BY YOU FROM OPSGENIE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. FOR CLARITY, THE SERVICES PROVIDED TO YOU UNDER ANY TRIAL SERVICES SUBSCRIPTION IS PROVIDED BY OPSGENIE ‘AS-IS’ WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND. THE ENTIRE RISK ARISING OUT OF THE ACCESS, USE OR PERFORMANCE OF THE SERVICE PROVIDED UNDER ANY TRIAL SERVICE SUBSCRIPTION REMAINS WITH THE YOU.
11. LIMITATION OF LIABILITY
11.1 No Liability. IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY IN CONNECTION WITH THIS AGREEMENT OR ITS PERFORMANCE, WHETHER UNDER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY), OR ANY OTHER THEORY OF LIABILITY, FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OR LOSSES, INCLUDING, WITHOUT LIMITATION, SUCH DAMAGES OR LOSSES ARISING FROM (A) BUSINESS INTERRUPTION, (B) LOSS OF PROFIT, REVENUES OR GOODWILL, (B) LOSS OF DATA, PROGRAMMING OR CONTENT, (C) FAILURE TO REALIZE SAVINGS OR OTHER BENEFITS, (D) SUBSTITUTE PROCUREMENT, OR (E) DAMAGE TO EQUIPMENT, INCURRED BY SUCH PARTY OR ANY THIRD PARTY, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES OR IF SUCH DAMAGES OR LOSSES ARE FORESEEABLE.
11.2 Maximum Liability. IN NO EVENT AT ANY TIME WILL A PARTY’S TOTAL AGGREGATE OR CUMULATIVE LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND (DIRECT OR OTHERWISE), WITH RESPECT TO THE OTHER PARTY AND ALL THIRD PARTIES, EXCEED MORE THAN THE TOTAL AMOUNT PAID BY YOU TO OPSGENIE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO LIABILITY, WHETHER SUCH LIABILITY ARISES UNDER BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND STRICT LIABILITY) OR ANY OTHER THEORY OF LIABILITY.
11.3 Exceptions. THE PROVISIONS OF SECTION 11.1 (“NO LIABILITY”) AND SECTION 11.2 (“MAXIMUM LIABILITY”) WILL NOT APPLY TO ANY LIABILITY ARISING OUT OF (1) A PARTY’S FRAUD, GROSS NEGLIGENCE OR INTENTIONAL MISCONDUCT, (2) A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9 (“CONFIDENTIALITY”), (3) A PARTY’S INDEMNFICATION OBLIGATIONS UNDER SECTION 12 (“INDEMNIFICATION”), OR (4) YOUR BREACH OF YOUR OBLIGATIONS UNDER SECTION 2 (“TRIAL SERVICES”), SECTION 4 (“LICENSE”) OR SECTION 5 (“ACCESS AND USE”), INCLUDING WITHOUT LIMITATION YOUR BREACH OF THE ACCEPTABLE USE POLICTY. NOTWITHSTANDING THE FOREGOING: (A) FOR ANY BREACH BY OPSGENIE OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 9, IN NO EVENT AT ANY TIME WILL OPSGENIE’S TOTAL LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND EXCEED MORE THAN THREE TIMES THE TOTAL AMOUNT PAID BY YOU TO OPSGENIE UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY; AND (B) IN NO EVENT WILL OPSGENIE’S TOTAL LIABILITY FOR DAMAGES OR LOSSES OF ANY KIND IN CONNECTION WITH ANY TRIAL SERVICES SUBSCRIPTION EXCEED FIFTY UNITED STATES DOLLARS ($50.00).
12.1 By OpsGenie. OpsGenie shall defend at Our sole cost any claim made by a third party against a Customer Indemnitee before a court or government tribunal based on an allegation by such third party that the Services, when provided to You during a Subscription Term, infringes a United States Intellectual Property Right of a third party. OpsGenie shall pay any settlement amounts made and approved by Us, and indemnify the Customer Indemnitee for any damages or costs finally awarded against the Customer Indemnitee by a court of competent jurisdiction, in connection with OpsGenie’s defense of such claim. This Section 12.1 (“Indemnification by OpsGenie”) will not apply to the extent that the claim arises from: (a) any modifications to the Services made by anyone other than an OpsGenie employee or a contractor working on behalf of OpsGenie; (b) the combination of the Services with data, materials, products, services or technology not provided by OpsGenie; or (c) any access or use of the Services other than in accordance with this Agreement. If any portion of the Services is finally found to infringe an Intellectual Property Right of a third party, or if OpsGenie believes that the Services is or may be infringing, then OpsGenie may, at Our sole option and discretion: (i) procure for You the right to continue using the Services under the terms of this Agreement; (ii) replace or modify the Services so that the Services is no longer infringing with substantially equivalent functionality; or (iii) if neither options (i) or (ii) are practicable or commercially reasonable, then OpsGenie may cancel all Subscription Plans, terminate this Agreement and refund to You the pro-rata portion of the Subscription Charges paid by You for the remainder of the then-current Subscription Term of the cancelled Services subscription. The foregoing states OpsGenie’s sole and exclusive obligation and Your sole and exclusive remedy in the event of any claims or actions for infringement or misappropriation of a third party’s Intellectual Property Rights. For clarity, the indemnification obligations set forth under this Section 12.1 (“Indemnification by OpsGenie”) will not apply to OpsGenie with respect to the Services provided under any Trial Services Subscription.
12.2 By You. You shall defend, at Your sole cost and expense, any and all OpsGenie Indemnitees from and against any Claim arising out of or resulting from: (a) any allegation that the Customer Data or Your Brand Features, or the use thereof, infringes or misappropriates the Intellectual Property Rights of, or has caused harm to, a third party; (b) any action or inaction taken by You as a result of Your access or use of the Services; or (c) Your violation of any law, rule or regulation, or breach of any warranty or other obligation, or failure to meet any of Your responsibilities, under this Agreement. You shall pay for, and indemnify and hold each and all OpsGenie Indemnitees harmless from, any and all damages, losses, liabilities, judgements, settlements, fines, penalties, costs (including without limitation court costs), expenses and fees (including without limitation reasonable attorneys’ fees) incurred by any and all OpsGenie Indemnities in connection with any such Claims.
12.3 Procedure. Each Party’s indemnification obligations under this Agreement are conditioned upon the Party seeking indemnification: (a) promptly notifying the indemnifying Party in writing of the Claim; (b) granting the indemnifying Party sole control of the defense and settlement of the Claim (provided that any settlement imposing a material obligation on the indemnified Party shall be subject to the indemnified Party’s prior written consent, not to be unreasonably withheld); and (c) providing the indemnifying Party, at the indemnifying Party’s expense, with all assistance, information and authority reasonably required for the defense and settlement of the Claim. The indemnified Party may appoint its own counsel to participate in the defense of the Claim, at the indemnified Party’s sole cost and expense.
13.1 Termination for Cause. Either Party may terminate this Agreement upon written notice if the other Party materially breaches this Agreement and fails to correct the breach within thirty (30) days following written notice specifying the breach, except that the cure period for any default by You with respect to payment shall be ten (10) business days. Nothwithstanding the foregoing, We may terminate this Agreement immediately upon written notice to You if We determine, in Our sole discretion, that such termination is necessary to prevent the misappropriation or infringement of any OpsGenie confidential or proprietary information.
13.2 Effect of Termination. Upon termination or expiration of this Agreement: (a) all subscriptions and licenses granted in connection with the Services will immediately terminate or expire and You will immediately cease access to and use of the Services; (b) all accrued Subscription Charges will be immediately due and payable by You; and (c) You shall immediately delete or destroy all OpsGenie Confidential Information received in connection with Your access to and use of the Services and shall provide Us with written certification that such deletion or destruction has been performed. Upon termination or expiration of this Agreement, We shall cease use of the Your Brand Features, provided that: (a) We shall have a reasonable time to remove the Brand Features from promotional materials, (b) We shall be entitled to exhaust materials printed during the Term that include the Brand Features, and (c) We shall not be required to remove any such printed materials from circulation.
13.3 Surviving Terms. The provisions of Sections 1 (“Definitions”), 3.7 (“Third Party Services”), 6 (“Charges and Payment”), 8 (“Ownership; Rights”), 9 (“Confidentiality”), 11 (“Limitation of Liability”), 12 (“Indemnification”), 13.2 (“Effect of Termination”), 13.3 (“Surviving Terms”), 15 (“Other Terms”) and 16 (“Changes to Agreement”) will survive termination or expiration of this Agreement.
14. PUBLICITY; PROMOTIONS
14.1 Publicity and Promotional Activities. You shall comply with Our reasonable requests to support promotional and public relations efforts pertaining to the Services, which efforts may include: (a) posting Your name and logos on OpsGenie’s website; (b) a press release announcing Your purchase and use of the Services; (c) using Your name and logos on OpsGenie’s customer listings; (d) You acting as a reference for OpsGenie, including without limitation taking reference calls from prospective customers and analysts; (e) production and distribution of use cases and other marketing materials, which may be used on OpsGenie’s website and other collateral, describing Your use case and benefits derived from the Services, and (f) participation in targeted press and analyst interviews highlighting the benefits of implementing the Services.
14.2 License. You grant to Us a limited, non-exclusive right to use and display Your Brand Features in the production of marketing materials, including without limitation displaying such Brand Features on OpsGenie’s website, provided that such use is in accordance with Your Brand Feature’s use guidelines that You make available to Us.
15. OTHER TERMS
15.1 Notices. Except where this Agreement expressly states that a notice may also be sent by email or otherwise, all notices shall be sent by prepaid certified mail, return receipt requested, or delivered by courier service (a) to You, at Your name and address appearing on Your order or registration for the Services, (b) to Us, at OpsGenie, Inc., 450 W Broad St. Suite 421, Falls Church, VA 22046, Attention: Legal Department, or (c) to the any other address as may be specified by a Party. Notice will be deemed received: (a) for certified mail, on the third day following deposit in the mail; and (b) for courier service, on the second day following sending. All email notices shall be sent to the Parties’ email addresses designated on Your order or registration for the Services and each will be deemed received when the email have been successfully sent.
15.2 Assignment. A Party shall not transfer or assign this Agreement, or any of its rights or obligations under this Agreement, to any other person or entity, whether by written agreement, operation of law or otherwise, without the prior written consent of the other Party. Any purported assignment or transfer by a Party without the other Party’s required prior written consent will be void and of no effect. Notwithstanding the foregoing, a Party may assign this Agreement to an affiliate or to a successor to all or substantially all of its business or assets (whether through merger, stock sale, asset sale or other transaction) upon notice to the other Party, provided, however that if such assignment is to a direct competitor of the other Party, then such other Party will have the one-time right to immediately terminate this Agreement upon written notice, which right must be exercised within thirty (30) days of such party’s receipt of notice of such assignment. Any assignment or transfer of or under this Agreement will be binding upon, and inure to the benefit of, the successors, executors, heirs, representatives, administrators and assigns of the assigning or transferring Party.
15.3 Governing Law; Jurisdiction and Venue. The Agreement will be governed by the laws of the State of Massachusetts (without regard to conflict of law principles) and the United States. In the event of any dispute in connection with this Agreement, each Party agrees to submit to the jurisdiction and venue of the State and Federal courts serving Suffolk County, Massachusetts, and waives any objections to the jurisdiction and venue of such courts.
15.4 Compliance. You and OpsGenie each agree to comply with all applicable laws and regulations with respect to its respective activities hereunder, including without limitation any export laws and regulations of the United States.
15.5 Federal Government End Use Provisions. The Services and all accompanying documentation are “commercial items,” developed exclusively at private expense; consisting of “commercial computer software” and “commercial computer software documentation” as such terms are defined in the applicable acquisition regulations. If You are the U.S. Government or any agency or department thereof (“Government”), Government agrees that the Services and the documentation are licensed hereunder (a) only as a commercial item, and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions of this Agreement.
15.6 Attorneys’ Fees. In any claim, action or proceeding between the Parties arising out of this Agreement or the subject matter hereof, the prevailing Party in the claim, action or proceeding will be entitled to have the other Party pay the prevailing Party’s reasonable attorneys’ fees, costs and other expenses incurred by the prevailing Party in the enforcement or defense of such claim, action or proceeding.
15.7 Independent Contractors; No Agency. The Parties are independent contractors, and no agency, joint venture or partner relationship is established. Neither Party nor its agents and employees are the representatives of the other Party for any purpose and will not have, or represent to have, any right or authority to bind the other Party or assume or create any express or implied obligation on behalf of the other Party.
15.8 Force Majeure. Except for all payment obligations, neither Party will be liable to the other for delay or failure to perform any of its obligations under circumstances where such delay or failure is due to any reasons beyond a Party’s reasonable control, including without limitation Acts of God, fire, flood, earthquake, power failure, sabotage, unavailability of the internet, civil strife, riot, strike, war and any military or other government action.
15.9 Equitable Relief. Each Party acknowledges that a breach by the other Party of any confidentiality or proprietary rights provision of this Agreement may cause the non-breaching Party irreparable damage, for which the award of damages would not be adequate compensation. Consequently, the non-breaching Party may institute an action to enjoin the breaching Party from any and all acts in violation of those provisions, which remedy shall be cumulative and not exclusive, and a Party may seek the entry of an injunction enjoining any breach or threatened breach of those provisions, in addition to any other relief to which the non-breaching Party may be entitled at law or in equity.
15.10 Non-Exclusive Remedies. Except as expressly set forth otherwise in this Agreement, the exercise by either Party of any remedy under this Agreement will be without prejudice to its other remedies under this Agreement or otherwise.
15.11 Allocation of Risk. The Parties acknowledge that the limitations and exclusions of liability and warranties contained in this in this Agreement represent the Parties’ agreement based upon the perceived level of risk associated with their respective obligations under this Agreement and the Services paid for hereunder. Without limiting the generality of the foregoing, the Parties acknowledge and agree that: (a) the provisions hereof that limit liability, disclaim warranties or exclude consequential damages or other damages or remedies shall be severable and independent of any other provisions and shall be enforced as such, regardless of any breach hereunder; and (b) all limitations of liability, disclaimers of warranties, and exclusions of consequential damages or other damages or remedies shall remain fully valid, effective and enforceable in accordance with their respective terms, even under circumstances that cause an exclusive remedy to fail of its essential purpose.
15.12 Severability; Waiver. If any provision of this Agreement is or becomes illegal, unenforceable or invalidated, by operation of law or otherwise, that provision will be omitted to such extent and the remainder of this Agreement will remain in full force and effect. Any waiver by either Party of any condition, term, part or provision of this Agreement will not be a waiver of any other condition, term, part or provision, nor will the waiver be a future waiver of such condition, term, part or provision.
15.13 Entire Agreement; Amendment; Controlling Provisions. The Agreement, along with Your Services order or registration: (a) constitutes the complete agreement of the Parties relating to the Services; (b) supersedes any other written or oral agreement, representation, warranty, understanding or other negotiation or communication between the Parties; and (c) except as expressly provided for under Section 16 (“Changes to Agreement”) can only be modified by a writing signed by Your and OpsGenie’s authorized representatives. Any additional, inconsistent or conflicting terms and conditions contained in any purchase order issued by You shall be of no force or effect, regardless of any statement in a purchase order to the contrary and even if the purchase order is signed or accepted by OpsGenie. The Agreement may be executed in any number of counterparts, each an original, and as executed constituting one agreement binding both Parties even though both Parties do not sign the same counterpart.
15.14 Headings. Captions and headings contained in this Agreement have been included for ease of reference and convenience and shall not be considered in interpreting or construing this Agreement.
16. CHANGES TO AGREEMENT.16.1 Modification of Terms. We reserve the right to modify this Agreement at any time, in Our sole discretion. We will post the revised terms and conditions of the Agreement and provide notice in advance of the effective date of such changes. If the revised Agreement is not acceptable to You, Your sole and exclusive remedy will be to stop using the Services and to cancel your subscription to the Services prior to the date that such changes will go into effect. Failing to cancel Your subscription to the Services, or Your continued use of the Services, after the date that the changes to the Agreement go into effect constitutes Your acceptance of the revised Agreement.