Terms of service agreement
This Terms of Service Agreement (hereinafter referred to as the “Agreement”) is between DataOpus Inc. (the “Provider”) and the organization agreeing to the terms of this Agreement (“Customer”) (collectively referred to as the “Parties”) and together with all applicable attachments, addenda, and Order Forms, is the complete agreement of the parties regarding Customer’s order of the Product.
Now, therefore, the Parties agree as follows:
1. Terms of acceptance
This Agreement shall be effective on the date (a) Customer accepts terms of this Agreement and (b) Provider receives any required full payment of selected Subscription Plan.
In the event of a conflict, an attachment, addendum, or Order Form prevails over this Agreement.
2. Definitions
2.1. “Applicable Laws” means the laws, rules, regulations, court orders, and other binding requirements of a relevant government authority that apply to or govern Provider or Customer.
2.2. “Affiliate” means any entity that Controls, is Controlled by, or is under common Control with the Customer entity agreeing to these terms, where “Control” means ownership of more than 50% of the voting interests of the subject entity or having the power to direct or cause the direction of the management and policies of an entity, whether through ownership, by contract, or otherwise, or is granted access by Customer for any purpose.
2.3. “Customer Data” means data, information, or materials submitted by or on behalf of Customer or Users to the Product but excludes Feedback.
2.4. “Database” means a unique database instance identified by the Customer to be scanned by the Product, even if multiple databases exist on a single database licensed server.
2.5. “Database Tier” means the set of maximum number of Database counts available for scan in a Subscription Plan.
2.6. “DPA” means Provider’s Data Processing Addendum.
2.7. “Feedback” means suggestions, feedback, or comments about the Product or related offerings.
2.8. “Order Form” means an ordering document, or an online order entered into between Customer (or Affiliates) and Provider specifying the Product to be provided pursuant to this Agreement. Each Order Form is a stand-alone Agreement, separate from any other Order Form, incorporating the terms and conditions of this Agreement by reference.
2.9. “License” means a License file for Customer to use the Product for approved database platforms for the duration of the Subscription Period from the Subscription Start Date, subject to this Agreement.
2.10. “Local Version” means the installed version of the Product for Windows 10/11.
2.11. “Product” means the Static Information Architecture Analysis engine, by Provider, that analyzes, and reports findings related to database platforms, which includes its Web Version, Local Version, application program interfaces, application executables, and reports made available through the services.
2.12. “Subscription” means the use of the Product as defined on the applicable Order Form.
2.13. “Subscription Plan” means the available plans of the Product, outlined on Provider’s pricing page.
2.14. “User” means any individual who uses the Product on Customer’s behalf or through Customer’s account, including Customer’s or its Affiliate’s employees, consultants, contractors, or agents.
2.15. “Website” means Provider’s website www.DataOpus.us, and its sub-domain pages.
2.16. “Web Version” means the Product web-hosted application.
3. Grant of license
3.1. Access Rights. Provider grants Customer a non-exclusive, non-sublicensable, non- transferable, and revocable right to access and use (and to grant access and use of the Product to its Users) the Product during the applicable Subscription Period, and subject to an applicable Order Form.
3.2. Limits. The limits to the License that applies to Customer are specified in the Order Form and in this Agreement. Until further notice on releases from Provider, Subscription is limited to the Local Version of the available Subscription Plan, as described on pricing page.
3.3. Delivery. Promptly following the Customer’s purchase of a Subscription, Provider will provide the Customer with a License.
4. Use of product
4.1. User Account. Customer is responsible for all actions on Users’ accounts and for Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised.
4.2. Affiliates. If authorized, individuals from Customer’s Affiliates may access Customer’s account as Users under Customer’s Agreement and Customer will be responsible for its Affiliates’ compliance with this Agreement.
4.3. Privacy and Security. The terms of the DPA are hereby incorporated by reference and will apply to the extent any Customer Data includes Personal Data. The DPA sets out how Provider will process Personal Data on Customer’s behalf in connection with the Subscription provided to Customer under this Agreement. Provider will maintain commercially appropriate administrative, physical, and technical safeguards to protect Personal Data as described in the DPA and Security Policy.
4.4. Usage of Feedback and Usage Data. Customer may, but is not required to, give Provider Feedback, in which case Customer gives Feedback “AS IS.” Provider may use all Feedback freely without any restriction or obligation. In addition, Provider may collect and analyze Usage Data, and Provider may freely use Usage Data (i) to maintain, improve, and enhance Provider’s products and services without restriction or obligation and (ii) to communicate Product offerings to Customer as consented. However, Provider may only share Usage Data with others if the Usage Data is aggregated and does not identify Customer or Users.
5. Payment
5.1. Subscription Period. 12 months. Each Order Form will start on the Subscription Start Date and continue for the Subscription Period.
5.2. Subscription Start Date. The date that the Web Version of the Product is made available to the Customer.
5.3. Fees. Customer will pay Provider fees based on the applicable Order Form in full before the access and use of the Product. Provider may update Product pricing by giving at least thirty (30) days notice to Customer (including by email or notification within the Product), and the change will apply in the next Subscription Period.
5.4. Taxes. Any fees charged to Customer are exclusive of taxes. Except for those taxes based on Provider’s net income, Customer will be responsible for all applicable taxes in connection with this Agreement including, but not limited to, sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties. If Customer is exempt from certain taxes, Customer will provide proof of such exemption to Provider without undue delay upon execution of the applicable Order Form and prior to making any payment.
5.5. Upgrades. If Customer wishes to increase Database Tier or upgrade to a higher Subscription Plan after the payment of an Order Form, Customer will receive prorated credit for payment on their current tier; Said credit will be calculated by Provider and reflected as a discount on the applicable Order Form for the upgraded Database Tier or Subscription Plan. The most recent order will extend the Subscription Period on all databases to a new 12-month period. When upgrading from a free Subscription Plan to a paid Subscription Plan, there will be no credit or discount applied.
5.6. Auto-renewal. Each Order Form will automatically renew for additional Subscription Periods at the end of the then-current Subscription Period. Customer authorizes Provider to automatically charge Customer for the applicable fees on or agrees to make payment prior to the Renewal Date unless the Subscription has been terminated or canceled by Customer at least thirty (30) days prior to the Renewal Date. If Customer chooses to cancel its Subscription during the Subscription Period, Customer may use the Product until the end of Customer’s then-current Subscription Period, but without any right to a refund or credit for such remaining period of the Subscription Period.
6. Customer’s obligations & restrictions
6.1. Obligations. Customer shall at all times:
(a) Ensure the Product is used only as expressly permitted in this Agreement;
(b) Only use the Product in compliance with applicable law;
(c) Ensure Affiliates and Users comply with this Agreement, as applicable;
(d) Be responsible for all actions on Users’ accounts and for Users’ compliance with this Agreement. Customer and Users must protect the confidentiality of their passwords and login credentials. Customer will promptly notify Provider if it suspects or knows of any fraudulent activity with its accounts, passwords, or credentials, or if they become compromised;
(e) Only use an unmodified version of the Product that was downloaded from the Website;
(f) Only use a License that was provided by Provider;
(g) Be responsible for its own use of the Product and for verifying the absence of any viruses, spyware, or malicious programming in its own server environment;
(h) Prohibit, by appropriate measures, any unauthorized resale to, access to, or use of the Product by any third-party other than an Affiliate;
(i) Advise Provider in writing within ten (10) calendar days if Customer becomes aware of any person’s unauthorized use or distribution of the Product or of any other violation of the terms of this Agreement.
6.2. Restrictions. Customer must NOT:
(a) Distribute or sub-License to a third party;
(b) Create any copies of the License;
(c) Remove any proprietary notices or labels;
(d) Reverse engineer, decompile, or attempt to discover any source code or underlying ideas or algorithms of the Product;
(e) Access accounts, information, data, or portions of the Product to which Customer does not have explicit authorization;
(f) Use the Product to develop a competing service or product.
7. Suspension
If Customer (a) fails to pay renewal prior to the Renewal Date; (b) breaches Customer Obligation and Restrictions (Section 6); or (c) uses the Product in violation of the Agreement or in a way that materially or negatively impacts the Product or others, then Provider may temporarily suspend Customer’s access to the Product with or without notice. Provider may reinstate Customer’s access to the Product if Customer resolves the underlying issue.
8. Term & termination
8.1. Agreement Term. This Agreement is in effect as long as there is an active License for the Product.
8.2. Termination. This Agreement may be terminated as follows:
(a) Either Party may terminate this Agreement unilaterally at any time without prior notice if the other Party commits a material breach that is not cured within thirty (30) days following receipt of notice of the breach. If Provider terminates for breach, any amounts Customer paid will not be refunded and Provider reserves the right to bring claims for damages.
(b) Provider may terminate this Agreement and/or any License without liability if:
(i) Customer’s License or use of the Product violates applicable law; or
(ii) Provider is prohibited by law or otherwise restricted from providing Products to Customer.
(c) Customer may terminate this Agreement unilaterally, at any time and without cause, by providing at least thirty (30) days prior written notice to Provider. In the event of a termination without cause, amounts paid or payable by the Customer will not be refundable.
8.3. Effect of Termination. Termination of the Agreement will automatically terminate all Order Forms. Upon expiration or termination:
(a) Customer will no longer have any right to use the Product or Technical Support; and
(b) Must destroy or delete any corresponding License; and
(c) Provide Provider with written confirmation of such destruction or deletion within fifteen (15) days of the termination date.
8.4. Survival. The following sections shall survive termination of this Agreement: Feedback and Usage Data (Section 4.4), Payment (Section 5) for fees and taxes accrued or payable before expiration or termination, Customer’s Obligation and Restrictions (Section 6), Effect of Termination (Section 8.3), Survival (Section 8.4), Representation and Warranties (Section 10), Disclaimer of Warranties (Section 11), Limited Liability (Section 13), Confidentiality (Section 14), Governing Law (Section 16), and General Conditions (Section 17).
9. Intellectual property
Provider exclusively owns all right, title, and interest in and to all intellectual property rights in the Product and Website. Customer agrees to abide by all applicable copyright and other laws, as well as any additional copyright notices or restrictions contained in the Product and Website. All present and future rights in and to trade secrets, patents, copyrights, trademarks, service marks, know-how, and other proprietary rights of any type under the laws of any governmental authority, domestic or foreign, including without limitation rights in and to all applications and registrations relating to the Product and Websites shall, as between the Parties, at all times be and remain the sole and exclusive property of Provider.
10. Representations & warranties
10.1. Mutual. Each party represents and warrants to the other that: (a) it has the legal power and authority to enter into this Agreement; (b) it is duly organized, validly existing, and in good standing under the Applicable Laws of the jurisdiction of its origin; (c) it will comply with all Applicable Laws in performing its obligations or exercising its rights in this Agreement.
10.2. From Customer. Customer represents and warrants that it, all Users, and anyone submitting Customer Data each have and will continue to have all rights necessary to submit or make available Customer Data to the Product and to allow the use of Customer Data as described in the Agreement.
10.3. From Provider. Provider represents and warrants to Customer that (a) it will not materially reduce the general functionality of the Product during a Subscription Period (with the exception of the unpaid version currently named Healthscan – for this Subscription Plan Provider has full right to change, reduce, or eliminate functionality materially and without notice); and (b) to the knowledge of Provider, the Product does not contain any malicious code, program, or internal component which could damage, destroy, or alter the Product, or which could reveal, damage, destroy, or alter any data or other information accessed through or processed by the Product in any manner.
10.4. Provider Warranty Remedy. If Provider breaches a warranty in Section 10.3, Customer must give Provider notice (with enough detail for Provider to understand or replicate the issue) within 30 days of discovering the issue. Within 30 days of receiving sufficient details of the warranty issue, Provider will attempt to restore the general functionality of the Product. If Provider cannot resolve the issue, Customer may terminate the affected Order Form and Provider will pay to Customer a prorated refund of prepaid fees for the remainder of the Subscription Period. Provider’s restoration and reperformance obligations, and Customer’s termination right, are Customer’s only remedies if Provider does not meet the warranties in Section 10.3.
11. Disclaimer of warranties
Save as expressly provided otherwise in this Agreement and to the maximum extent permitted by applicable law:
(a) The Product is provided on an “as is” basis and on an “as available” basis without any warranties or representations, whether express or implied, oral, or written, of any kind or nature, including, but not limited to, any warranties of quality, performance, reliability, security, non-infringement, merchantability, or fitness for any particular purpose, and Provider expressly excludes any such warranties, representations or implications that a Product will be error-free, complete, operate without interruption, or operate correctly with any given product, system or specifications of Customer; and
(b) Provider makes no guarantee as to the availability of its Product, and Provider shall not be responsible for any loss resulting from the loss or deletion of any data or information resulting from the use of the Product, or any network or system outages, file corruptions, or for any other alleged consequences of having used the Product.
12. Indemnification
12.1. Covered Claims.
(a) Provider Covered Claims. Any action, proceeding, or claim that the Product, when used by Customer according to the terms of the Agreement, violates, misappropriates, or otherwise infringes upon a third party’s intellectual property or other proprietary rights.
(b) Customer Covered Claims. Any action, proceeding, or claim (1) that the Customer Data, when used according to the terms of the Agreement, violates, misappropriates, or otherwise infringes upon a third party’s intellectual property or other proprietary rights; and (2) arising from or relating to Customer’s breach or alleged breach of Section 6.2 (Customer Restrictions).
(c) General Cap Amount: $5,000.00
(d) Increased Cap Amount: $10,000.00
(e) Increased Claim. A breach of Section 4.3. (Privacy and Security) and an Indemnifying Party’s indemnification obligations.
(f) Unlimited Claims. A breach of Section 14 (Confidentiality) resulting from gross negligence or willful misconduct (however, excluding any data or security breaches).
12.2. Protection by Provider. Provider will indemnify, defend, and hold harmless Customer from and against all Provider Covered Claims made by someone other than Customer, Customer’s Affiliates, or Users, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, which arise from Provider Covered Claim.
12.3. Protection by Customer. Customer will indemnify, defend, and hold harmless Provider from and against all Customer Covered Claims made by someone other than Provider or its Affiliates, and all out-of-pocket damages, awards, settlements, costs, and expenses, including reasonable attorneys’ fees and other legal expenses, which arise from the Customer Covered Claim.
12.4. Procedure. The Indemnifying Party’s obligations in this section are contingent upon the Protected Party:
(a) promptly notifying the Indemnifying Party of each Covered Claim for which it seeks protection;
(b) providing reasonable assistance to the Indemnifying Party at the Indemnifying Party’s expense; and
(c) giving the Indemnifying Party sole control over the defense and settlement of each Covered Claim.
A Protected Party may participate in a Covered Claim for which it seeks protection with its own attorneys only at its own expense. The Indemnifying Party may not agree to any settlement of a Covered Claim that contains an admission of fault or otherwise materially and adversely impacts the Protected Party without the prior written consent of the Protected Party.
12.5. Changes to Product. If required by settlement or court order, or if deemed reasonably necessary in response to a Provider Covered Claim, Provider may:
(a) obtain the right for Customer to continue using the Product;
(b) replace or modify the affected component of the Product without materially reducing the general functionality of the Product; or
(c) if neither (a) nor (b) are reasonable, terminate the affected Order Form and issue a pro-rated refund of prepaid fees for the remainder of the Subscription Period.
12.6. Exclusions.
(a) Provider’s obligations as an Indemnifying Party will not apply to Provider Covered Claims that result from:
(i) modifications to the Product that were not authorized by Provider or that were made in compliance with Customer’s instructions;
(ii) unauthorized use of the Product, including use in violation of this Agreement;
(iii) use of the Product in combination with items not provided by Provider; or
(iv) use of a previous version of the Product where a newer release would avoid Provider Covered Claim.
(b) Customer’s obligations as an Indemnifying Party will not apply to Customer Covered Claims that result from the unauthorized use of the Customer Content, including use in violation of this Agreement.
12.7. Exclusive Remedy. This Section 12 (Indemnification), together with any termination rights, describes each Protected Party’s exclusive remedy and each Indemnifying Party’s entire liability for a Covered Claim.
13. Limitation of liability
13.1. Liability Caps. If there are Increased Claims, each party’s total cumulative liability for the Increased Claims arising out of or relating to this Agreement will not be more than the Increased Cap Amount. Each party’s total cumulative liability for all other claims arising out of or relating to this Agreement will not be more than the General Cap Amount.
13.2. Damages Waiver. Each party’s liability for any claim or liability arising out of or relating to this Agreement will be limited to the fullest extent permitted by Applicable Laws. Under no circumstances will either party be liable to the other for lost profits or revenues, or for consequential, special, indirect, exemplary, punitive, or incidental damages relating to this Agreement, even if the party is informed of the possibility of this type of damage in advance.
13.3. Exceptions. The liability caps in Section 13.1 and the damages waiver in Section 13.2 do not apply to any Unlimited Claims. The damages waiver in Section 13.2 does not apply to any Increased Claims.
14. Confidentiality
“Confidential Information” means all non-public information, materials, documentation, or data, relating to a Party’s business, which is disclosed by one Party (“Discloser”), or received by the otherParty (“Recipient”), in connection with this Agreement, and which is clearly identified or marked as confidential or proprietary at the time of delivery to Recipient or which a reasonable person would understand to be confidential or proprietary. Recipient undertakes to:
(a) protect the confidentiality of the Confidential Information with at least the same degree of care as it applies to its own Confidential Information of a similar nature, but in no event less than a reasonable degree of care;
(b) only use Confidential Information for purposes consistent with its rights and obligations under this Agreement;
(c) not reverse engineer or decompile Confidential Information; and
(d) not disclose Confidential Information to any third-party other than its employees, consultants, vendors or advisors who have a need to know and who are bound by confidentiality and non-use obligations no less restrictive than those set forth herein.
Confidential Information shall not include any information which:
(a) Recipient already knew at the time of disclosure;
(b) is generally available to the public or becomes known through no wrongful act of Recipient;
(c) Recipient received from a third-party who had a legal right to provide it; and/or
(d) Recipient developed independently of any knowledge of or access to any of Discloser’s Confidential Information.
Either party may disclose Confidential Information if required by law or regulatory authorities, provided that, so far as it is lawful to do so, Recipient gives prompt notice to Discloser, so that Discloser may contest the requirement to provide such information. Upon Discloser’s written request, Recipient will return or destroy all Confidential Information in Recipient’s possession within thirty (30) days of the request. Recipient may retain a limited number of electronic copies of the Confidential Information to comply with applicable law, and as may be automatically created, maintained, and destroyed by its standard backup processes and systems. Recipient will remain bound by its confidentiality obligations for any copies retained. If Customer runs the Product in other than “read only” mode and as a result Provider gains access to Confidential Information of Customer, Customer is deemed to have waived its claims under this provision.
15. Dispute resolution
Before resorting to formal dispute resolution, if Customer takes any issue with Provider or Product, Customer agrees that before any formal action, Customer will contact Provider at dispute@DataOpus.us and provide a brief, written description of the dispute and contact information (including username, if the dispute relates to an account). Except for intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with the other Party, and good faith negotiations prior to initiating a lawsuit shall be a condition to either party initiating a lawsuit.
16. Governing law
16.1. This Agreement will be governed by and construed according to the laws of Wyoming.
16.2. Chosen Courts. The courts (whether state, federal, or otherwise) are located in Jackson, Wyoming.
The Governing Law (Section 16.1.) will govern all interpretations and disputes about this Agreement, without regard to its conflict of law’s provisions. The parties will bring any legal suit, action, or proceeding about this Agreement in the Chosen Courts (Section 16.2) and each party irrevocably submits to the exclusive jurisdiction of the Chosen Courts.
17. General conditions
17.1. Entire Agreement. This Agreement constitutes the Parties’ entire contractual relationship. It cancels and supersedes all prior oral or written communications, proposals, conditions, representations, and warranties, and prevails over any conflicting or additional terms mentioned in any price quotation, purchase order, acknowledgment, clickwrap or clickthrough provisions, or other communication between the Parties, regardless of when such terms were issued. To the extent of any conflict or inconsistency between the provisions of this Agreement and any Order Form, the Order Form shall prevail.
17.2. Translation. The English version of this Agreement is the only valid version. Translations into other languages are not legally binding.
17.3. Modification to the Product. Provider reserves the right at any time to modify or discontinue, temporarily or permanently, any free Subscription Plan of the Product, with or without notice. Customer agrees that Provider shall not be liable to Customer or any third party for any modification, suspension or discontinuation of any free Subscription Plan of the Product.
17.4. Assignment. Neither party may assign any rights or obligations under this Agreement without the prior written consent of the other party. However, either party may assign this Agreement upon notice if the assigning party undergoes a merger, change of control, reorganization, or sale of all or substantially all its equity, business, or assets to which this Agreement relates. Any non-permitted assignment is void. This Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
17.5. Force Majeure. Neither Party shall be deemed in default or otherwise be liable under this Agreement (except for payments due) as a result of its inability to perform its obligations hereunder by reason of any fire, earthquake, flood, substantial snow storm, epidemic, accident, explosion, casualty, strike, lock-out, labor controversy, riot, civil disturbance, act of public enemy, embargo, war, act of God, or any municipal, county, state, provincial, territorial or national ordinance or law, or any executive, administrative or judicial order (which order is not the result of any act or omission which would constitute a default hereunder) or any failure or delay of any transportation, power or communication system or any other similar cause beyond that Party’s control.
17.6. Notices. Provider will notify Customer of any material modifications to this Agreement at least thirty (30) days prior to the modifications taking effect by sending an email notice to Customer. Customer’s continued use of the Product after thirty (30) days from notice constitutes agreement to the modifications of the Agreement.