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OpstreamAI

FREEMIUM SOFTWARE TERMS OF SERVICE

THESE TERMS OF SERVICE ("Agreement") CONSTITUTE A BINDING CONTRACT BETWEEN OPSTREAMAI, INC. ("Company") AND THE CUSTOMER ENTITY ("Customer") THAT ENTERED INTO THE ORDER FORM (DEFINED BELOW). 

 

"Order Form" means the agreed order form for the Software and any related services into which this Agreement is incorporated by reference. References herein to the "Agreement" shall be deemed to include the Order Form.

 

BY ENTERING INTO THE ORDER FORM, OR BY OTHERWISE ACCESSING OR USING THE SERVICE (DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT IT HAS READ, UNDERSTOOD, AND AGREES TO BE BOUND BY THIS AGREEMENT (THE DATE OF SUCH OCCURRENCE BEING THE "Effective Date").

 

DEFINITIONS AND INTERPRETATION

"Freemium License Limitations" means any Software usage and/or consumption limitations and parameters (for example, as to volume of Users, location, Features, duration) set forth in the Order Form.

 

"Software" means Company's Decision Making Platform software as a service solution, as well as its related content and Features made available thereon.

1.LICENSE AND DELIVERY

Subject to the terms and conditions of this Agreement, Company grants Customer a limited, non-exclusive, non-assignable, non-transferable, and non-sublicensable right and license, during the Term (defined below), to access and use a Feature limited version of the Software, solely for Customer's internal end-use (the "Freemium License"). Any rights not expressly granted herein are hereby reserved by Company and its licensors. As a condition to the Freemium License, Customer shall comply with the license restrictions set forth in Section ‎3  (Access and Usage Restrictions) hereto ("Access and Usage Restrictions"). For the avoidance of doubt, the Software and any copies of the Software are only licensed (not sold) under this Agreement.

 

The Freemium License shall be subject to the component, environment, geographic, Feature, and volume limitations specified in the Order Form. To the extent that under the Order Form Company is required to provide Customer with any setup services, Customer is responsible for procuring all access rights, permissions, and licenses required by Company in connection therewith, as well as performing any other tasks stated in the Order Form. Services provided by Company hereunder may be subcontracted to Company's third party service providers. Customer shall use its best efforts to provide Company with detailed Feedback (defined below), and to cooperate with Company in further exploring and refining such Feedback. Customer warrants that Feedback will not infringe any third party's intellectual property rights or any applicable law. "Feedback" means ideas, suggestions, or similar feedback about performance of the Software and/or for improving the Software. Company acknowledges that, any and all rights, including intellectual property rights in such Feedback and the Product shall belong exclusively to the Company and that such shall be considered the Company's confidential information. Nothing in this Agreement creates any exclusivity restriction or obligation for either party. Both parties have the right to contract with other parties for the same or similar services / products without restriction. The Company in no way shall be obliged to make use of any kind of the Feedback or part thereof.

 

If Customer wishes to exceed (and prior to exceeding) the Freemium License Limitations, Company and Customer shall enter into a new Order Form, in each case according to the pricing agreed between the parties, subject to Company's then current subscription Software terms of service.

2.ACCESS AND USAGE RESTRICTIONS

 

Customer shall not (and shall not encourage or permit any third party to do any of the following, in whole or in part: (a) copy, "frame" or "mirror" the Software on any other server or wireless or Internet-based device; (b) sell, assign, transfer, lease, rent, sublicense, distribute, publicly perform, display or communicate, offer as part of a time-sharing, outsourcing or service bureau environment, or otherwise make available, the Software; (c) modify, alter, adapt, arrange, or translate the Software; (d) decompile, disassemble, decrypt, reverse engineer, extract, or otherwise attempt to discover the source code or non-literal aspects (such as the underlying structure, sequence, organization, file formats, non-public APIs, ideas, or algorithms) of, the Software; (e) remove, alter, or conceal any copyright, trademark, or other proprietary rights notices displayed on or in the Software; (f) circumvent, disable or otherwise interfere with security-related or technical features or protocols of the Software; (g) make a derivative work of the Software, or use them to develop any service or product that is the same as (or substantially similar to) them; (h) store or transmit any robot, malware, Trojan horse, spyware, or similar malicious item intended (or that has the potential) to damage or disrupt the Software; (i) use the Software to infringe, misappropriate, or violate any third party's intellectual property rights, or any applicable law (such as those regarding anti-spamming), or to otherwise engage in any fraudulent activity; (j) employ any hardware, software, device, or technique to pool connections or reduce the number of devices or users that directly access or use the Software (sometimes referred to as 'virtualization', 'multiplexing' or 'pooling') in order to circumvent any restrictions on scope of authorized use; (k) forge or manipulate identifiers in order to disguise the origin of any Customer data inputted or uploaded to, or transmitted through, the Software; or (l) take any action that imposes or may impose (as determined in Company's reasonable discretion) an unreasonable or disproportionately large load on the servers, network, bandwidth, or other cloud infrastructure which operate or support the Software, or otherwise systematically abuse or disrupt the integrity of such servers, network, bandwidth, or infrastructure.

 

3.TERM AND TERMINATION

This Agreement commences on the Effective Date and will remain in full force and effect unless earlier terminated as provided herein (the "Term"). Each party may terminate this Agreement (including the Order Form) at any time, for any reason or no reason, upon at least thirty (30) days prior written notice (email acceptable) to the other party.  Notwithstanding the foregoing, Company may terminate this Agreement immediately upon written notice (email acceptable) to Customer if Customer breaches any provision of this Agreement. Upon termination of this Agreement, Customer shall immediately cease all access to and use of the Software. Any provision in this Agreement that is stated (or by its nature ought) to survive termination, shall survive, as will this Section ‎3‎‎(Term and Termination) through ‎8 (General) inclusive.

 

4.OWNERSHIP

Company (and/or its licensors, as applicable) is and shall be the sole and exclusive owner of (and is hereby assigned) all right, title, and interest (including without limitation all intellectual property rights) in and to (a) the Software, (b) Feedback, and (c)  any modifications, derivative works, or improvements of or to any of the foregoing (regardless of authorship or inventorship).

 

5.CONFIDENTIALITY

Each party (the "Recipient") may have access to certain non-public or proprietary information and materials of the other party (the "Discloser"), whether in tangible or intangible form ("Confidential Information"). Confidential Information shall not include information and material which: (a) at the time of disclosure by Discloser to Recipient hereunder, is in the public domain; (b) after disclosure by Discloser to Recipient hereunder, becomes part of the public domain through no fault of the Recipient; (c) was rightfully in the Recipient's possession at the time of disclosure by the Discloser hereunder, and which is not subject to prior continuing obligations of confidentiality; (d) is rightfully disclosed to the Recipient by a third party having the lawful right to do so; or (e) independently developed by the Recipient without use of, or reliance upon, Confidential Information received from the Discloser. The Recipient shall not disclose or make available the Discloser's Confidential Information to any third party (including without limitation by way of publishing), except to its employees, advisers, agents and investors, subject to substantially similar written confidentiality undertakings). Recipient shall take commercially reasonable measures, at a level at least as protective as those taken to protect its own Confidential Information of like nature (but in no event less than a reasonable level), to protect the Discloser's Confidential Information within its possession or control, from disclosure to a third party. The Recipient shall use the Discloser's Confidential Information solely for the purposes expressly permitted under this Agreement. In the event that Recipient is required to disclose Confidential Information of the Discloser pursuant to any Law, regulation, or governmental or judicial order, the Recipient will (a) promptly notify Discloser in writing of such Law, regulation or order, (b) reasonably cooperate with Discloser in opposing such disclosure, (c) only disclose to the extent required by such law, regulation or order (as the case may be). Upon termination of this Agreement, or otherwise upon written request by the Discloser, the Recipient shall promptly return to Discloser its Confidential Information (or if embodied electronically, permanently erase it), and certify compliance writing.

 

6.DISCLAIMER OF WARRANTIES

THE SOFTWARE AND ALL OTHER GOODS AND SERVICES ARE PROVIDED AND MADE AVAILABLE HEREUNDER ON AN "AS IS" AND "AS AVAILABLE" BASIS, AND ALL EXPRESS, IMPLIED AND STATUTORY CONDITIONS AND WARRANTIES (INCLUDING WITHOUT LIMITATION ANY IMPLIED CONDITIONS OR WARRANTIES OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET POSSESSION, NON-INFRINGEMENT, OR QUALITY OF SERVICE, OR THAT OTHERWISE ARISE FROM A COURSE OF PERFORMANCE OR USAGE OF TRADE) ARE HEREBY DISCLAIMED. COMPANY DOES NOT MAKE ANY REPRESENTATION, WARRANTY, GUARANTEE OR CONDITION REGARDING THE EFFECTIVENESS, USEFULNESS, RELIABILITY, TIMELINESS, COMPLETENESS, OR QUALITY OF THE FOREGOING, OR AS REGARDS COMPLIANCE WITH ANY LAWS OR REGULATIONS. COMPANY WILL NOT BE LIABLE FOR DELAYS, INTERRUPTIONS, SERVICE FAILURES OR OTHER PROBLEMS INHERENT IN USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS OR FOR ISSUES RELATED TO PUBLIC NETWORKS OR HOSTING PROVIDERS.

 

7.LIMITATION OF LIABILITY

IN NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES, LICENSORS OR SUPPLIERS BE LIABLE UNDER, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, FOR: (A) ANY CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, OR PUNITIVE DAMAGES; (B) ANY LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF REVENUE, OR LOSS OF ANTICIPATED SAVINGS; (C) ANY LOSS OF, OR DAMAGE TO, DATA, REPUTATION, OR GOODWILL; AND/OR (D) THE COST OF PROCURING ANY SUBSTITUTE GOODS OR SERVICES. THE COMBINED AGGREGATE LIABILITY OF COMPANY AND ALL ITS AFFILIATES UNDER, OR OTHERWISE IN CONNECTION WITH, THIS AGREEMENT SHALL NOT EXCEED TEN U.S. DOLLARS (US$ 10). THE FOREGOING EXCLUSIONS AND LIMITATION SHALL APPLY: (A) EVEN IF COMPANY OR ONE OF ITS AFFILIATES HAS BEEN ADVISED, OR SHOULD HAVE BEEN AWARE, OF THE POSSIBILITY OF LOSSES, DAMAGES, OR COSTS; (B) EVEN IF ANY REMEDY IN THIS AGREEMENT FAILS OF ITS ESSENTIAL PURPOSE; AND (C) REGARDLESS OF THE THEORY OR BASIS OF LIABILITY (INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, TORT, NEGLIGENCE AND STRICT LIABILITY).

 

8.GENERAL

8.1.Governing Law; Jurisdiction. This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any conflicts of laws rules. Any claim or dispute under, or otherwise in connection with, this Agreement shall be subject to the exclusive jurisdiction and venue of the courts located in Wilmington, Delaware; except however that each party may seek equitable in any court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement and is hereby disclaimed. EACH PARTY IRREVOCABLY WAIVES ITS RIGHT TO TRIAL OF ANY ISSUE BY JURY. EXCEPT TO PROTECT OR ENFORCE A PARTY'S INTELLECTUAL PROPERTY RIGHTS OR CONFIDENTIALITY OBLIGATIONS, NO ACTION, REGARDLESS OF FORM, UNDER THIS AGREEMENT MAY BE BROUGHT BY EITHER PARTY MORE THAN ONE (1) YEAR AFTER TERMINATION OF THE AGREEMENT.

8.2.Entire Agreement and Amendments. This Agreement  represents the entire agreement of the parties with respect to the subject matter hereof, and supersedes and replaces all prior and contemporaneous oral or written understandings and statements by the parties with respect to such subject matter. In entering into this Agreement, neither party is relying on any representation not expressly specified in this Agreement. This Agreement may only be amended in writing signed by each party. This Agreement may be executed in two or more counterparts. Section headings herein are for convenience only.

8.3.Assignment. Company may assign this Agreement (or any of its rights and obligations) without restriction or obligation. Customer may not assign this Agreement (or any of its rights and obligations) without Company's prior express written consent. Any prohibited assignment shall be null and void.

8.4.Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid, illegal, or unenforceable, then the remaining provisions of this Agreement shall remain in full force and effect.

8.5.Waiver and Remedies. Rights and remedies herein are cumulative of all rights and remedies available at law or in equity. No failure or delay on the part of any party hereto in exercising any right or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or remedy preclude any other or further exercise thereof or the exercise of any other right or remedy. Any waiver granted hereunder must be in writing, and shall be valid only in the specific instance in which given.

8.6.Relationship. The relationship of the parties is solely that of independent contractors. Company shall not be responsible for any failure to perform any obligation because of any cause beyond its reasonable control (such as problems relating to the hosting of the Software).

8.7.Publicity. Company may use Customer’s name and logo on Company's website and in its promotional materials to state that Customer is a customer of Company.

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