Terms of Service Agreement
LAST REVISED: Feb 08, 2018
1. Your Agreement with OpsCaptain
1.1. This Terms of Service Agreement (this "Agreement") is entered into by and between OpsCaptain, including its subsidiaries and affiliates involved in providing the Services (together, "Company") and you, the individual or legal entity ("Customer" or "you") that wishes to access and use OpsCaptain’s free trial Services or to purchase OpsCaptain’s Subscription Services (defined below) (together, the "Service"). Your use of and access to the Service is governed by this Agreement, which includes the OpsCaptain’s Terms of Service, and Acceptable Use Policy.
1.2. This Agreement constitutes a legally binding contract between Company and Customer. By clicking the "I Accept" button, you are indicating that you have read, understand, and agree to be bound by the terms and conditions of this Agreement. If you do not have the authority to bind the Customer or do not agree to be bound by all the terms and conditions of this Agreement, then neither you nor the legal entity you may represent are permitted to purchase, access, or use the Services and you should not click the "I Accept" button. Your permission to access and use the Services is conditioned on your continued and uninterrupted compliance with the terms and conditions of this Agreement.
2. Your Account and Use of the Service
2.1. You will be required to provide registration information and create a OpsCaptain.com account (your "Account") in order to access and use the Services. All registration information that you provide must be kept accurate, current, and complete at the time you register and throughout your use of the Service. You agree to promptly update your registration information, if any such information becomes inaccurate or obsolete.
2.2. You are responsible for the security of your passwords and all other credentials used for accessing your Account or the Service and for any use (authorized or unauthorized) of your Account or the Service under your passwords or credentials. If you become aware of any unauthorized use of your password, credentials, or Account, you agree to notify the Company immediately.
2.3. Your use of the Service must comply with all applicable laws, regulations and ordinances, including any laws regarding the export of data or software.
3. Subscription Services, Fees, and Payment
The Company makes the services and support available for purchase on a monthly basis by Account holders. You will pay us the applicable fees and charges for use of the Subscription Services using one of the payment methods we support. All amounts payable under this Agreement will be made without setoff or counterclaim, and without any deduction or withholding. If any deduction or withholding is required by law, you will notify us and will pay us any additional amounts necessary to ensure that the net amount that we receive, after any deduction and withholding, equals the amount we would have received if no deduction or withholding had been required.
4. Acceptable Use Policy
Use of the Services is subject to this Acceptable Use Policy.
Customer agrees not to, and not to allow third parties (including End Users) to use the Services:
- to violate, or encourage the violation of, the legal rights of others
- to engage in, promote or encourage illegal activity;
- for any unlawful, invasive, infringing, defamatory or fraudulent purpose (for example, this may include phishing, creating a pyramid scheme or mirroring a website);
- to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature;
- to interfere with the use of the Services, or the equipment used to provide the Services, by customers, authorized resellers, or other authorized users;
- to disable, interfere with or circumvent any aspect of the Services;
- to generate, distribute, publish or facilitate unsolicited mass email, promotions, advertisings or other solicitations (“spam”);
5. Modification and Termination of the Agreement
5.1. The Company may make changes to this Agreement from time to time at its sole discretion. When these changes are made, the company will make a new copy of the agreement available through this Site. The revised Agreement will identify the date the Agreement was last revised.
5.2. You acknowledge and agree that your continued access to or use of the Service after the date on which the revised Agreement has been made will indicate your acceptance of the revised Agreement. If you do not accept the revised Agreement, your only recourse is to stop using the Service and terminate this Agreement.
5.3. You may terminate this Agreement at any time by deleting all Your Content, discontinuing your use of the Service and closing your Account. The Company may, at any time and at its sole discretion, terminate your use of the Service if (A) you have breached any provision of the Agreement (or Company reasonably believes that you do not intend to or are unable to comply with the provisions of the Agreement); (B) The Company is required to do so by law (for example, due to a change to the law governing the provision of the Service); (C) the Service relies on data or services provided by a third party partner and the relationship with such partner (i) has expired or been terminated or (ii) requires Company to change the way the Company provides the data or services through the Service; (D) providing the Service could create a substantial economic burden as determined by the Company in its reasonable good faith judgment; (E) providing the Service could create a security risk or material technical burden as determined by Company in its reasonable good faith judgment; (F) Company ceases commercially offering or provisioning all or a portion of the Service; or (G) you are in arrears with respect to any payment due to the Company under this Agreement. Termination of this Agreement shall also terminate the Terms of Service.
6. EXCLUSION OF WARRANTIES
6.1. NOTHING IN THESE TERMS, INCLUDING SECTIONS 6 AND 7, SHALL EXCLUDE OR LIMIT THE COMPANY' WARRANTY OR LIABILITY FOR LOSSES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.
6.2. YOU HEREBY EXPRESSLY ACKNOWLEDGE AND AGREE THAT, UNLESS OTHERWISE STATED IN THESE TERMS OR ANOTHER WRITTEN AGREEMENT BETWEEN YOU AND THE COMPANY, YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK AND THAT THE SERVICE IS PROVIDED "AS IS" AND "AS AVAILABLE."
6.3. THE COMPANY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS MAKE NO EXPRESS WARRANTIES AND DISCLAIM ALL IMPLIED WARRANTIES REGARDING THE SERVICE INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE COMPANY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO YOU THAT: (A) YOUR USE OF THE SERVICE WILL MEET YOUR REQUIREMENTS, (B) YOUR USE OF THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE SERVICE WILL BE ACCURATE.
7. LIMITATION OF LIABILITY
7.1. SUBJECT TO SECTION 6.1 ABOVE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT THE COMPANY, ITS SUBSIDIARIES AND AFFILIATES, AND ITS LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL CONSEQUENTIAL OR EXEMPLARY DAMAGES WHICH MAY BE INCURRED BY YOU, HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY. EXCLUDED DAMAGES SHALL INCLUDE, BUT NOT BE LIMITED TO, ANY LOSS OF PROFIT (WHETHER INCURRED DIRECTLY OR INDIRECTLY), ANY LOSS OF GOODWILL OR BUSINESS REPUTATION, ANY LOSS OF DATA SUFFERED, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR ANY OTHER INTANGIBLE LOSS.
7.2. THE LIMITATIONS ON THE COMPANY' LIABILITY TO YOU IN PARAGRAPH 7.1 ABOVE SHALL APPLY WHETHER OR NOT THE COMPANY HAS BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
7.3. SUBJECT TO SECTION 6.1 ABOVE, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IN NO EVENT WILL THE CUMULATIVE LIABILITY OF THE COMPANY, ITS SUBSIDIARIES, AFFILIATES, OFFICERS, AGENTS, EMPLOYEES, ADVERTISERS, LICENSORS, SUPPLIERS, OR PARTNERS (COLLECTIVELY "THE COMPANY AND ITS PARTNERS"), FOR ALL LOSSES, CLAIMS, SUITS, CONTROVERSIES, BREACHES, OR DAMAGES FOR ANY CAUSE WHATSOEVER ARISING OUT OF RELATED TO THE TERMS OR SERVICE (INCLUDING ANY PURCHASED SUBSCRIPTION SERVICES) AND REGARDLESS OF THE FORM OF ACTION OR LEGAL THEORY AND WHETHER OR NOT ARISING UNDER CONTRACT OR TORT, EXCEED ONE DOLLAR.
8.1. OpsCaptain Indemnity. OpsCaptain shall defend, indemnify, and hold Customer harmless against all costs and
reasonable expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party arising out of any
claim by a third party that the Services as delivered by OpsCaptain infringes or misappropriates, as applicable, any Canadian
patent issued as of the Effective Date or any copyrights or trade secrets under applicable laws of any jurisdiction within Canada, provided that Customer gives OpsCaptain (a) prompt written notice of such claim; (b) sole authority to control
and direct the defense and/or settlement of such claim; and (c) such information and assistance as OpsCaptain may reasonably request, at OpsCaptain’s expense, in connection with such defense and/or settlement. Notwithstanding the
foregoing, OpsCaptain shall have no obligation or liability to the extent that the alleged infringement arises from (1) the
combination, operation, or use of the Services with products, services, information, materials, technologies, business methods or
processes not furnished by OpsCaptain; (2) modifications to the Services, which modifications are not made by
OpsCaptain; (3) failure to use updates to the Services provided by OpsCaptain; or (4) use of the Software except in
accordance with the Documentation (circumstances under the foregoing clauses (1), (2), (3), (4), and (5), collectively, “Customer Indemnity Responsibilities”). Upon the occurrence of any claim for which indemnity is or may be due under Section 8.2, or in the event that OpsCaptain believes that such a claim is likely, OpsCaptain may, at its option (i) appropriately modify the Service so that it becomes non-infringing, or substitute functionally equivalent software or services; (ii) obtain a license to the applicable third-party intellectual property rights; or (iii) terminate this Agreement on written notice to Customer and refund to Customer any unused Subscription Fees under the then current Order Term(s). The obligations set forth in this Section 8 shall constitute OpsCaptain’s entire liability and Customer’s sole remedy for any actual or alleged infringement or misappropriation.
8.2. Indemnification by Customer. Customer shall indemnify, hold harmless, and defend OpsCaptain from and against
all losses, expenses (including reasonable attorneys’ fees), damages, and liabilities awarded to a third party resulting from a
claim by a third party arising from or in connection with Customer Indemnity Responsibilities. OpsCaptain agrees to give
Customer (a) prompt written notice of such claim; (b) sole authority to control and direct the defense and/or settlement of such
claim; and (c) such information and assistance as Customer may reasonably request, at Customer’s expense, in connection with
such defense and/or settlement. Notwithstanding the foregoing, Customer shall not settle any third-party claim against
OpsCaptain unless such settlement completely and forever releases OpsCaptain with respect thereto or unless OpsCaptain provides its prior written consent to such settlement. In any action for which Customer provides defense on behalf of OpsCaptain, OpsCaptain may participate in such defense at its own expense by counsel of its choice.
9. Policies Regarding Copyright and Trademarks
9.1. Unless you have agreed otherwise in writing with The Company, nothing in the Terms gives you a right to use any of The Company's trade names, trademarks, service marks, logos, domain names, and other distinctive brand features.
10. Third-Party Content
10.1. The Service may include hyperlinks to other websites, content, resources, email content, advertising, products, and other materials provided by companies or persons other than The Company (collectively, "Third-Party Content"). The Company has no control over and disclaims all responsibility for all Third-Party Content. You acknowledge and agree that The Company is not responsible for the availability of and does not endorse any such Third-Party Content
10.2. You acknowledge and agree that The Company is not liable for any loss or damage which may be incurred by you or your Users as a result of the availability of Third-Party Content, or as a result of any reliance placed by you on the completeness, accuracy or existence of any Third-Party Content.
11. General Legal Terms
11.1. There are no third party beneficiaries to the Agreement. The parties are independent contractors, and nothing in these Agreement creates an agency, partnership or joint venture. Neither party will have the power to bind the other or to incur obligations on the other's behalf without such other party's prior written consent.
11.2. You may not assign or transfer this Agreement, in whole or in part, without The Company' prior written consent. Any attempted assignment or transfer in violation of this Section will be null, void, and without effect.
11.3. You agree that The Company may provide you with notices, including those regarding changes to this Agreement, by email, regular mail, or postings on the Service. If you have provided The Company with your email address, you acknowledge and agree that The Company may send you any notices required by law by email instead of by regular mail.
11.4. You agree that if The Company does not exercise or enforce any legal right or remedy which is contained in this Agreement (or which The Company has the benefit of under any applicable law), this will not be taken to be a formal waiver of The Company' rights and that those rights or remedies will still be available to The Company.
11.5. The Company shall not be liable for failing or delaying performance of its obligations resulting from any condition beyond its reasonable control, including but not limited to, governmental action, acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures, and Internet disturbances.
11.6. This Agreement, and your relationship with The Company under this Agreement, shall be governed by the laws of the Province of Nova Scotia. You and The Company agree to submit to the exclusive jurisdiction of the courts located within the city of Halifax, Nova Scotia to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that The Company shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
11.7. If any provision of this Agreement is found to be contrary to law or public policy by a court of competent jurisdiction, such provision shall be of no force or effect; but the remainder of this Agreement shall continue in full force and effect. The parties shall meet and confer in good faith with respect to any provision found to be in contravention of the law or public policy in order to agree on a substitute provision.
11.8. If The Company provides you with a translation of the English language version of these Terms, the English language version of these Terms will control if there is any conflict between the English and translated versions.
11.9. This Agreement together with the attachments hereto and incorporations by reference constitutes the complete and exclusive agreement between the parties concerning its subject matter and supersedes all prior or contemporaneous agreements or understandings, written or oral, concerning the subject matter of this Agreement. This Agreement may not be modified or amended except in a writing signed by a duly authorized representative of each party.