Terms of Service T2

Service Terms of Use

THESE SERVICE TERMS OF USE (‘TERMS OF USE’) ARE A LEGAL AGREEMENT BETWEEN J/K LABS INC. (‘J/K LABS’, ‘OPSLEVEL’, ‘US’, ‘WE’, OR ‘OUR’) AND YOU OR THE COMPANY YOU REPRESENT (‘YOU’ OR ‘YOUR’) WHERE YOU SUBMIT AN ORDER (‘ORDER‘) THAT IS ACCEPTED BY US FOR THE SERVICES AND GOVERNS YOUR ACCESS USE OF OUR SERVICES.BY SUBMITTING AN ORDER FOR THE SERVICE AND ACCEPTING THESE TERMS OF USE, EITHER THROUGH SUBMITTING THE ORDER, CLICKING TO SIGNIFY ACCEPTANCE, SETTING UP A USER ACCOUNT OR OTHERWISE USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL OF THEIR PROVISIONS. YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF USE ON YOUR (AND YOUR COMPANY’S) BEHALF. IF YOU DO NOT AGREE WITH THE TERMS OF USE, YOU SHOULD NOT INDICATE ACCEPTANCE AND MAY NOT USE THE SERVICES.

PLEASE READ THESE TERMS OF USE CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS OF USE CONTAIN A MANDATORY INDIVIDUAL ARBITRATION PROVISION THAT REQUIRES THE USE OF ARBITRATION RESOLVE DISPUTES.

1. Use of the Service.
Our ‘Service’ is a cloud-based application for management of IT Production Services and measurement of operational health. A ‘Production Service’ is a software or process providing business value that provides its functionality through message passing or an application programming interface. Production Services are developed and operated by Teams. A ‘Team’ is a collection of Users. ‘User’ represents a person or system accessing the Service. ‘User Information’ means the identifiable information of your personnel, including, but not limited to, names, email addresses, telephone numbers, and other contact information. You must configure the Service for us, provide and maintain accurate Team and User information. Instructions on how to configure the Service, provide Teams and Users, and otherwise get the full benefit of the Service will be found in the readme and help files, knowledge base, and other documentation made available at https://www.opslevel.com/support/ (‘Documentation’). We may suspend or terminate your use of the Service at any time if you breach any terms of these Terms of Use, including without limitation failing to pay Fees.

2. Subscription Terms.
Subject to payment of all Fees and the terms and conditions of these Terms of Use, where you submit an Order that is accepted by us, we hereby grant you a limited, non-exclusive, non-sublicensable and nontransferable right during the Term (as defined below) of these Terms of Use to use the Service only in accordance with the Documentation, solely for your internal purposes. Your right to use the Service during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the Order. You must purchase a subscription for each Production Service that is defined in the Service through an Order in order to be provided access to that Production Service. If more than the permitted number of Production Services are defined in the Service you will be charged the applicable Fees for the excess Production Services. You may add Production Services from the application dashboard as needed, subject to paying applicable additional Fees. You are solely responsible for selecting secure User passwords, changing passwords frequently, maintaining the confidentiality of User logons and passwords, and restricting access to the Service. We assume no responsibility for damage or loss arising from unauthorized access to the Service and your account due to your failure to protect your account through proper maintenance of User logons and passwords. The Service may be subject to limitations as set forth in the Order and/or Documentation, including, but not limited to, limits on disk storage space, the rate of incoming application requests, the number of inbound calls permitted to the API within a specified period of time, and the number of outbound calls the Service will make to a client API within a specified period of time. You acknowledge that exceeding these other limitations may cause the Service to malfunction, may accrue additional Fees, or may result in suspension of the Service until compliance has occurred.

3. Restrictions on Use.
You may not use the Service or Documentation except as permitted in these Terms of Use. Without limiting the foregoing, you may not, and may not cause or permit any third party to, (i) alter, modify or create any derivative works of the Service, the underlying source code, or the Documentation in any way, including without limitation customization, translation or localization; (ii) rent, lease, license, sublicense, encumber, sell, offer for sale, or otherwise transfer rights to the Service or Documentation, including for timesharing or as a service bureau; (iii) port, reverse compile, reverse assemble, reverse engineer, decompile, disassemble or otherwise attempt to discover the source code of the Service; (iv) copy, distribute, link, frame, mirror or otherwise make available any portion of the Service to any third party; (v) remove or alter any logos, trademarks, links, copyright or other notices, legends or markings from the Service or Documentation; (vi) attempt to bypass or tamper with the security, operation of the Service; (vii) attempt to access the accounts or data of any other customer or user; (viii) use the Service for benchmarking purposes or otherwise to analyze its workings and features for competitive purposes or in a manner that imposes unusual demands on the service outside of normal functions and operations; (ix) create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (x) circumvent any user limits or other timing or use restrictions that are built into the Service; (xi) remove any proprietary notices, labels, or marks from the Service or User Guide; (xii) frame or mirror any content forming part of the Service; or (xiii) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.

4. Proprietary Rights.

1. Reservation of Rights.
   Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to you hereunder other than as expressly set forth in these Terms of Use.
2. Customer Data.
   As between we and you, you exclusively own all rights, title and interest in and to all your Data, where “your Data” means all electronic data or information submitted by you to the Service, including without limitation any User Information. Your Data is deemed your Confidential Information under these Terms of Use. We shall not access your Data, except (i) to respond to service or technical problems; or (ii) at Customer’s request; or (iii) as necessary for the operation of the Service or billing; or (iv) as provided for below. You hereby grants us a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to use and otherwise exploit your Data as reasonably required to provide the Service. The forgoing license shall include the right for us to use and copy your Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Service use and other Service and User parameters, characteristics and use and other learnings that may be derived from your Data (“Aggregated Statistics”). We shall own all Aggregated Statistics created from the Customer Data.
3. Suggestions.
   We shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by you relating to the Service.

5. Support, Security and Privacy.

1. We shall provide basic support for the Service as outlined in the Order when you enroll in the Service.
2. We shall maintain administrative, physical, and technical safeguards in accordance with good industry practice for protection of the security, confidentiality and integrity of User Information. Without your prior written consent, we shall not (i) modify User Information other than as required for the purpose of providing the Service, (ii) disclose User Information to a third party (except as needed to perform the Service or if required to do so by law or governmental process), or (iii) access User Information except to provide the Service and prevent or address Service or technical problems. In the event of an intrusion or other breach of the Service’s security, Company shall use reasonable efforts to (a) notify you of the breach once a full investigation into the nature of the breach has been conducted and concluded and sufficient steps to remediate or correct the breach have occurred to ensure that all customer data is secure and would not be further jeopardized by such notification, and (b) resolve the breach and recover any data disclosed as a result thereof.

6. Fees and Payment Terms.
You shall pay all Fees associated with your use of the Service as set forth on your Order form (‘Fees’). Fees must be paid by cheque or wire transfer. For annual plans: (i) you must indicate an initial number of Production Services and may not reduce that number during the term of the plan; (ii) you will pay for a full year's subscription fees based on the initial number of Production Services, which amount is not cancellable or refundable; (iii) any additional Production Services added during the term of your plan (‘Overages’) will have their subscription fees calculated at the standard rate then in effect and prorated for the remainder of the plan term so that all Production Service subscriptions shall terminate on the same date. For all other Plans you will pay in accordance with the terms set out in the Order. You agree to pay all Overage charges incurred by Production Services by cheque, wire transfer, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions. All Fees are payable in United States dollars and are non-cancelable and non-refundable except as otherwise set forth herein. You shall be responsible for and pay all sales, use, value added or other taxes, except for taxes based on our income. Unpaid amounts payments may be assessed a late fee of the lesser of 2% per month or the maximum rate permitted by applicable law. We may suspend or terminate access to the Service if you fail to make any payments when due.

7. Confidentiality.
The Service and Documentation and all other information disclosed to you will be our ‘Confidential Information’. Your User Information and your Data will be your Confidential Information. Each party will keep the other’s Confidential Information confidential, will only use it in furtherance of these Terms of Use, and will not disclose it to any third party unless required to do so by law (in which case notice shall be given of the requirement to allow the other party to object or take other action), or if needed to fulfill its obligations hereunder (in which case any such third party must be bound by similar terms of confidentiality).

8. Injunctive Relief.
You acknowledge and agree that your breach or threatened breach of these Terms of Use shall cause us irreparable damage for which recovery of money damages would be inadequate and that we therefore may obtain timely injunctive relief to protect its rights under these Terms of Use in addition to any and all other remedies available at law or in equity.

9. Indemnification

1. By Us. We shall defend, indemnify and hold you harmless from and against all claims, losses and damages (including reasonable attorneys’ fees) made by a third party that the Service infringes that third party’s Canadian intellectual property rights, except to the extent such a claim is based on your misuse of the Service. If we believe that any portion of the Service may be subject to such a claim, then we may, at our sole option and expense: (i) procure for you the right to continue using the Service; (ii) modify or replace the infringing portions of the Service to allow for continued use, or if these alternatives are not commercially reasonable refund any unused, prepaid Fees and terminate these Terms of Use. THIS SECTION STATES OUR ENTIRE LIABILITY FOR INFRINGEMENT RELATING TO THE SUBJECT MATTER OF THESE TERMS OF USE. As a condition to being indemnified you shall promptly notify us of any claim, and allow us sole control of the defense and settlement of the claim.
2. By You. You agree to defend, indemnify and hold J/K Labs Inc. harmless from and against all claims, losses and damages, suits, government investigations, fines, actions, damages, settlements, losses, liabilities, costs and expenses (including reasonable attorney’s fees) for any breach of your representations, warranties and covenants.

10. Warranties; Disclaimers.

1. WE PROVIDE THE SERVICE AND DOCUMENTATION ‘AS IS’ WITHOUT ANY WARRANTY WHATSOEVER AND HEREBY DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THAT THE SERVICE WILL BE FREE FROM ERRORS OR VIRUSES, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, RELIABILITY, ACCURACY, SECURITY OF DATA, OR ACHIEVEMENT OF RESULTS.
2. WE DO NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, SERVICE OR CONTENT ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE, SERVICE OR CONTENT, AND WE WILL NOT BE A PARTY TO, LIABLE FOR OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.

11. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE HEREUNDER TO THE OTHER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR STRICT LIABILITY, FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR LOST PROFITS, WHETHER OR NOT FORESEEABLE AND EVEN IF SUCH PARTY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT WHERE OTHERWISE EXPLICITLY INDICATED, A PARTY’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE SHALL NOT EXCEED THE AMOUNTS PAID OR PAYABLE HEREUNDER IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRIOR TO THE EVENT GIVING RISE TO SUCH LIABILITY. WITHOUT LIMITING THE FOREGOING, WE SHALL HAVE NO LIABILITY FOR ANY FAILURE OF THE SERVICE ARISING FROM OR RELATED TO (I) ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS (II) YOUR OR YOUR USERS’ FAILURE TO CONFIGURE THE SERVICE IN CONFORMANCE WITH THE DOCUMENTATION, OR (III) YOUR OR YOUR USERS’ FAILURE TO PROVIDE ACCURATE USER INFORMATION TO THE SERVICE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.

12. Modifications to the Terms of Use.
We reserve the right, at our sole discretion, to modify or replace any part of these Terms of Use by (i) posting revised Terms of Use on and/or through the Service or (ii) providing notice to you of the change. Modifications will take effect at the end of the prepaid Term.

13. Arbitration.
READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US. For any dispute with us, you agree to first contact us at legal@opslevel.com and attempt to resolve the dispute with us informally. In the unlikely event that we have not been able to resolve a dispute it has with you after sixty (60) days, any controversy or claim arising out of or relating to these Terms of Use, or the breach hereof, shall be settled by arbitration in the city of Toronto, Canada, by binding arbitration. Any award shall be final, binding and conclusive. A judgment upon the award rendered may be entered in any court having jurisdiction thereof. Nothing in this Section shall be deemed as preventing us from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights.

14. Term and Termination.
These Terms of Use commence when you accept them. At the end of the term you contract for use of the Service, it shall automatically renew for additional terms of the same length at the prices communicated to you at least sixty (60) days prior to the end of that term (or the same prices as the prior term if no new prices are provided) until terminated by either you or us with at least thirty (30) days notice prior to the end of each such term. Either party may terminate these Terms of Use upon thirty (30) days prior written notice to the other party for a material breach that remains uncured at the expiration of such period. Immediately upon termination of these Terms of Use for any reason, you will (i) cease use of the Service, (ii) pay in full all Fees due upon termination, and (iii) return or destroy all copies of our Confidential Information. Upon expiration or termination of these Terms of Use for any reason your account shall be deactivated and all Contact Information deleted. All provisions of these Terms of Use which by their nature should survive cancellation or termination shall survive cancellation or termination.

15. Publicity.
You agree that we may identify you as a customer in our promotional and marketing activities and on our website.

16. Miscellaneous.
You will only use the Service in accordance with applicable law, including, without limitation all export control laws. These Terms of Use shall be governed by and interpreted in accordance with the laws of the province of Ontario without regard to its conflict of laws provisions. You may not assign, sublicense, delegate or otherwise transfer any of your rights or obligations under these Terms of Use without our prior written consent. We may assign these Terms of Use at our sole discretion. These Terms of Use shall be binding upon and shall inure to the benefit of the parties, their successors and permitted assigns. If any provision of these Terms of Use is held to be invalid or unenforceable, such provision shall be construed to reflect the parties original intent, and the remainder of these Terms of Use shall remain in full force and effect. These Terms of Use constitute the entire understanding and agreement of the parties with respect to its subject matter and supersedes all prior and contemporaneous agreements or understandings. The failure of either party to enforce any of the provisions of these Terms of Use shall not be construed to be a waiver of the right of such party thereafter to enforce such provisions. The parties to these Terms of Use are independent contractors and no agency, partnership, joint venture, employment or similar relationship exists between them. Neither party has the authority to bind the other or incur any obligation on its behalf. Notices required hereunder shall be effective if delivered by email, facsimile (effective upon transmission, as evidenced by transmission reports), courier or delivery service (effective upon receipt), or first class Canada mail, return receipt requested (effective upon receipt).

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