Terms and Conditions
These Terms of Service ("Agreement") govern use of the service provided at oddeye.co (or any subdomain of such domain). In this Agreement "Service Provider" means OddEye, OU a Tallinn/Estonia company with office at Narva mnt 5, 10117, and "Client" means you, individually, the person logging in to use the System (defined below), and, if that person is making use of the System for the benefit of another person or entity, that other person or entity — for example, your employer or your client if you are a consultant and authorized to make use of the System for your client.
- Provision of System. Subject to payment of all fees and other amounts set forth in one or more orders for services, Service Provider will provide Client online access to the software service more particularly described below (the "System") it provides with functionality described in, and under the other terms and conditions of, a work or service order (the " Services Order"), which may be provided in paper copy or electronically.
- Use of System. The System is a remote database driven computer/server/data center/web server performance monitoring system, that includes an agent component and a server component, where an agent component may be downloaded by the Client and installed on Client equipment, and the server component is maintained by Service Provider. Subject to any Services Order terms which shall control, during the Term, Client may download the agent and install it on the number of computers set forth in the Services Order, and use the entire System to monitor Client´s own equipment performance. Client may not use the System to monitor the computers, servers, data centers or other systems of third parties unless expressly permitted in the Services Order.
Client Obligations and Acknowledgements.
Unless otherwise provided in the Services Order, Client shall be solely responsible for installing and configuring the agent portion of the System, and maintaining the strict confidentiality of all user names and passwords and secure access to all user names and passwords only to Authorized Persons.
Access and use rights.
Client may use the System only in accordance with and subject to this Agreement (and the Services Order) and only during the period of time that Client has been authorized to use the System pursuant to the Services Order and has paid for the service.
All rights and property interests, including but not limited to patents, copyrights, trade secrets, trademarks and other proprietary rights recognized under applicable law in or relating to the System and all modifications, adaptation, derivative works and enhancements thereto, are owned exclusively by Service Provider and/or its licensors, and all such rights not expressly granted herein are reserved to Service Provider. Notwithstanding the above, Service Provider shall not acquire through this Agreement any ownership interest in Personal Information or in any Client provided data or software, Client provided intellectual property rights, or any rights in the reports and data generated from Client´s equipment by the System (all of which is hereby referred to as "Client Owned Materials and Information").
No party will use in any manner the trademarks or servicemarks ("Marks") of the other party without the express written permission of such other party, which consent may be withheld in the sole and absolute discretion of such other party. Notwithstanding the above, either party may publicly display, copy or reproduce the Marks of the other party solely in accordance with the purpose and intent of this Agreement or to meet its obligations hereunder or under the Services Order and Service Provider may identify Client as a user of the System; provided however that neither party shall alter, modify or revise any Mark of the other party without its written permission. 6. #####Unacceptable Uses. You may not (and covenant not to): Interfere with or disrupt the integrity or performance of the System or the data contained therein; Infringe any patent, copyright, trademark or misappropriate any trade secret of any person or * Attempt to gain unauthorized access to (or exceed authorized privileges in respect of) the System or its related systems or networks.
Term and Termination are as provided in the Services Order; provided that this Agreement shall automatically terminate without notice or a right to cure upon any party's assignment for the benefit of creditors or any commencement by or against a party of any proceeding in bankruptcy, insolvency, or reorganization pursuant to bankruptcy laws or laws of debtor's moratorium. All fees paid are non refundable.
Effect of Termination/Expiration and Post-Termination/Expiration Obligations.
All rights to use the System shall immediately terminate upon termination or expiration of this Agreement; Upon any termination or expiration of this Agreement: each party shall immediately return to the other, or at such other party's written election, destroy copies of, all of the other party's Confidential Information ("Confidential Information" means non public information of a party to this Agreement; by example and not limitation, Confidential Information of Service Provider includes the System, all software provided in connection with the System (including both source and object code), any results of tests of the System, and all communications between the parties concerning or relating to the System, all user names and passwords for accessing the System, the documentation, all amendments, enhancements and derivative works to the System). The party returning or destroying copies of such materials shall provide to the other party a signed written statement under oath certifying that it has returned or destroyed all of the other party's Confidential Information and that such party does not retain in its possession any copies of the other party's Confidential Information in hardcopy or electronic format. Notwithstanding the above, each party shall be permitted to retain for its records one archival copy of all Confidential Information solely for purposes of defense of such party in the event of subsequent litigation or third party claims arising out of or related to this Agreement, or compliance with applicable law. Such archival copy shall be destroyed on the earlier of the execution of a written release between the parties, or after six years from the effective date of termination. The confidentiality and security obligations of this Agreement shall survive termination and continue in perpetuity as to all such retained Confidential Information. Notwithstanding termination, Client shall remain responsible for payment of all fees and expenses incurred up to and including the effective date of termination. The provisions of Sections, through and including shall continue and survive in full force and effect to the extent so provided therein.
Non-Disclosure and Confidentiality.
Each party may disclose to the other Trade Secrets and Confidential Information of such party or of such party's associated companies or customers. Recipient agrees to hold the Confidential Information disclosed by Discloser in confidence and not to, directly or indirectly, copy, reproduce, distribute, manufacture, duplicate, reveal, report, publish, disclose, cause to be disclosed or otherwise transfer such Confidential Information to any third party or utilize such Confidential Information for any purpose whatsoever other than as expressly contemplated by this Agreement. With regard to Trade Secrets, this obligation shall continue for so long as such information constitutes a Trade Secret under applicable law. With regard to Confidential Information, this obligation shall continue for the Term and for so long as Recipient maintains Confidential Information disclosed by Discloser. Each party shall keep confidential the terms and conditions of this Agreement, but may make general statements publicizing the fact that the parties have entered into this Agreement. Notwithstanding the above, upon prior written notice to Discloser, Recipient may disclose Discloser's Confidential Information if, upon advice of counsel, such disclosure is required by a subpoena, court order or other compulsion of law (in which case Recipient will cooperate with Discloser to the extent reasonable to preserve the Confidential Information from public disclosure beyond that necessary in such proceeding).
- Exceptions. The above confidentiality obligations shall not apply to Confidential Information if and to the extent that Recipient establishes that the information communicated:
- Was already known to Recipient, without obligation to keep such information confidential, at the time of Recipient's receipt from Discloser, as evidenced by documents in the possession of Recipient prepared or received prior to such communication;
- Was received by Recipient in good faith from a third party lawfully in possession thereof and having no obligation to keep such information confidential;
- Was publicly known at the time of Recipient's receipt from Discloser or has become publicly known other than by a breach of the Agreement; or (iv) prior to Recipient's disclosure of such information, such disclosure was consented to in writing by Discloser. Unless otherwise designated and unless falling under this paragraph, all information transmitted between the parties (other than Personal Information) shall be presumed to be Confidential Information.
- Security Measures. Without limiting the obligations specified above, Recipient agrees to implement the following security steps in order to protect the confidentiality and security of Confidential Information of Discloser:
- Implement internal procedures to limit, control and supervise the use of Discloser's Confidential Information;
- Make Discloser's Confidential Information available only to Recipient's employees, agents and contractors who comply with the non-disclosure obligations set forth herein;
- Notify Discloser in writing of any suspected or known breach of the obligations and/or restrictions set forth herein; and
- Use those security procedures it uses for its own Confidential Information which it protects against unauthorized disclosure, appropriation or use, but not less than reasonable security procedures.
- Use and Disclosure. Except as otherwise restricted by this Agreement or in a Services Order, Service Provider may use or disclose Client Confidential Information and Personal Information to provide services to Client solely for the following purposes:
- To provide the services associated with the System to Client under this Agreement;
- For proper management and administration of Service Provider's business or to carry out its legal responsibilities; provided that such disclosure is required by law or Service Provider obtains reasonable assurances from the person to whom disclosure is made that such information will be held confidentially and used or further disclosed only as required by law of for the purpose for which it was disclosed and such person notifies the Service Provider of any instances of which he/she is aware in which the confidentiality of such information has been breached;
- To provide de-identified data aggregation and benchmarking services; and otherwise as permitted or required by applicable law.
Warranties and Covenants.
- Both Parties. Each party warrants and/or covenants that:
- It has the power and authority to execute and deliver this Agreement and has taken all necessary corporate action to authorize the execution and delivery of this Agreement;
- This Agreement is and shall be the legal, valid and binding obligation of such party, enforceable in accordance with its terms.
- Client. Client covenants that Client shall:
- Timely and fully perform its obligations under this Agreement;
- Use the System in compliance with all applicable federal and state laws, rules and regulations;
- Comply with all documentation provided by Service Provider;
- Not alter, recast, revise, modify, translate, reformat, reverse engineer, compile, disassemble or decompile the System or any portion thereof;
- Make no representations to Authorized Persons or third parties regarding the System or Service Provider's services that are not expressly authorized to be made in this Agreement;
- Not use Service Provider's Marks in any manner except as permitted under this Agreement;
- Cooperate with Service Provider in its provision of the System including providing such technical assistance and information as reasonably requested by Service Provider.
OTHER THAN AS EXPRESSLY SET FORTH ABOVE, NEITHER SERVICE PROVIDER NOR CLIENT MAKES ANY OTHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND WHETHER ORAL OR WRITTEN, AND SERVICE PROVIDER EXPRESSLY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF ACCURACY, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY, ANY IMPLIED WARRANTY AGAINST INFRINGEMENT AND ANY IMPLIED WARRANTIES ARISING UNDER ANY APPLICABLE UNIFORM COMPUTER INFORMATION TRANSACTION ACT. THERE IS NO WARRANTY THAT THE SYSTEM OR ANY EFFORTS OR INFORMATION PROVIDED BY SERVICE PROVIDER WILL FULFILL ANY OF CLIENT'S PARTICULAR PURPOSES OR NEEDS. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, SERVICE PROVIDER SHALL NOT BE LIABLE FOR THE QUALITY OR ACCURACY OF INFORMATION PROVIDED BY CLIENT OR THIRD PARTIES FOR OR VIA THE SYSTEM NOR FOR ANY INACCURATE RESULTS DUE TO SERVICE PROVIDER'S PROCESSING OF ANY SUCH DATA. SERVICE PROVIDER MAKES NO GUARANTEE OR WARRANTY OF TIMELINESS OF DELIVERY OF THE SYSTEM TO, OR PROCESSING OF ANY INFORMATION OR DATA PROVIDED BY, CLIENT.
- Both Parties. Each party agrees to indemnify, defend and hold harmless the other party, its subsidiaries, associated companies, employees and agents from and against any and all damage, liability, cost and expense (including reasonable attorneys' fees) incurred as a result of a third party claim (including claims of Authorized Persons) arising from:
- The willful misconduct of such party or such party's employees or contractors, or:
- Such party or such party's employees or contractors material breach of any provision of this Agreement.
- Exception and Notice. Neither party shall be liable to the other party to the extent that such other party has incurred any liability to a third party as a result of its own material breach of this Agreement, negligence or intentional misconduct. The obligations of each party to provide indemnification hereunder are contingent upon the indemnified party:
- Promptly notifying the indemnifying party in writing of any claim;
- Giving the indemnifying party sole control over the defense and settlement of the claim, provided that any settlement contains the full release of the indemnified party
- Reasonably cooperating in defense and settlement efforts.
Subject to the other terms and conditions of this Agreement including Sections 12.2 but excluding Section 13 (which shall not be applicable to the indemnification obligations set forth herein), Licensor agrees to indemnify, defend and hold harmless Licensee, its subsidiaries, associated companies, employees and agents from and against any and all damage, liability, cost and expense (including reasonable attorneys’ fees) incurred as a result of a third party claim (including claims of Authorized Persons) arising from any actual or alleged infringement by the Products and Services of the intellectual property rights of any third party (an "Infringement Claim"). In addition, in the event of an Infringement Claim, Licensee shall give Licensor prompt written notice of all of the facts and communications asserted in the Infringement Claim and Licensor may, but shall not be required, to provide a non infringing version of the System that is not materially less functional than the System asserted to be infringing, provide reasonable workarounds to the Infringement Claim, negotiate a license or other resolution of the Infringement Claim, or if the preceding actions are not commercially reasonable in the opinion of Licensor, terminate access to the module, service or portion of the System that is infringing, and refund any prepaid fees reasonably allocable to the portion of the System so terminated. If Licensor terminates access to an infringing portion of the System and such termination materially degrades the overall functionality of the System, Licensee may terminate the Services Order associated with the entire System. Notwithstanding any other provision of this Agreement, Licensor shall not be liable to indemnify, defend or otherwise pay an Infringement Claim to the extent that such claim arises from modifications to the System made by Licensee that are not permitted in the documentation or by written consent of Licensor, combination of the System with other software, systems, devices or websites (except to the extent such combination is required to operate the System as it was designed or as permitted in the documentation), use of the System not in material compliance with the documentation or workaround instructions, or continued use of a version of the System that is infringing after a non infringing version of the System or the portion asserted to be infringing has been made available.
LIMITATION OF LIABILITY.
- SUBJECT TO SECTION BELOW:
- CLIENT'S SOLE REMEDY IN THE EVENT OF A CLAIM AGAINST SERVICE PROVIDER FOR BREACH OF THIS AGREEMENT SHALL BE FOR SERVICE PROVIDER TO REPAIR, REPLACE OR OTHERWISE CORRECT THE SYSTEM.
- IN NO EVENT WILL SERVICE PROVIDER, ITS SUBSIDIARIES AND/OR ASSOCIATED COMPANIES, BE LIABLE TO CLIENT UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION, IN AN AMOUNT THAT EXCEEDS THE AGGREGATE AMOUNT OF FEES ACTUALLY PAID TO SERVICE PROVIDER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM
- IN NO EVENT WILL SERVICE PROVIDER, ITS OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE FOR ANY DAMAGES OF ANY KIND TO ANYONE OTHER THAN CLIENT UNDER THIS AGREEMENT OR OTHERWISE, REGARDLESS OF THE FORM OF CLAIM OR ACTION.
- SUBJECT TO SECTION BELOW: SUBJECT TO SECTION BELOW, IN NO EVENT WILL EITHER PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR EXEMPLARY DAMAGES OR COSTS (INCLUDING LEGAL FEES AND EXPENSES OTHER THAN THOSE AWARDED UNDER SECTION OR ), OR LOSS OF GOODWILL OR PROFIT IN CONNECTION WITH THE SUPPLY, USE OR PERFORMANCE OF OR INABILITY TO USE THE SYSTEM OR ANY PORTION THEREOF, LOSS OF DATA, FALSE OR ERRONEOUS INFORMATION TRANSMITTED VIA THE INTERNET OR IN CONNECTION WITH ANY CLAIM ARISING FROM THIS AGREEMENT, EVEN IF SUCH PARTY, ITS SUBSIDIARIES OR ASSOCIATED COMPANIES WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS.
- Exceptions. The limitations of liability set forth in Sections and above shall not apply:
- Where the party seeking the benefit of the limitation has engaged in willful misconduct;
- To claims that are actually covered by insurance, in which case such claims shall be limited to the actual insurance coverage less any deductible
- To claims made for material breach by a party of Section (Confidential Information), Section (Privacy) or Section (reservation of rights). Notwithstanding any other provisions no liability of Service Provider shall arise for failure to provide the System if due to any cause beyond Service Provider's reasonable control.
- No action arising out of this Agreement, regardless of form, may be brought by either party or any third party more than two (2) years after the date the cause of action accrued.
Third party software.
This product may include software from third parties that are licensed for use only specific OddEye software components. You agree to only use such software, which is included with The System, in conjunction with your use of The System, and the such software is provided "as is" and any express or implied warranties are disclaimed.
Reservation of Rights.
- License. Sublicense, sell, resell, transfer, assign, distribute, provide as a service bureau or software-as-service or otherwise commercially exploit or make available to any third party the System in any way;
- Modify. Modify or make derivative works based upon the System;
- Other. Other than in respect of embedded graphics in the System, create Internet "links" to the System or "frame" or "mirror" any content on any other server or wireless or internet-based device
- Build. Build a competitive product or service or build a product using Confidential Information of Service Provider or using the access Client has had to the System. Client shall not allow sharing of access credentials or access rights but may reassign such rights from time to time to new Authorized Persons who are replacing former Authorized Persons who have terminated employment or otherwise changed job status or function and no longer use the System.
- Applicable Law. This Agreement has been made, executed and delivered in Maryland. The parties mutually stipulate and agree that this Agreement is in all respects (including, but not limited to, all matters of interpretation, validity, performance and breach) to be exclusively construed, governed and enforced in accordance with the laws of Maryland and all applicable federal laws of the United States of America, as from time to time amended and in effect. The parties agree that the Uniform Commercial Code - Article 2 Sales, the United Nations Convention on Contracts for the International Sale of Goods, and the Electronic Signatures in Global and National Commerce Act shall not apply in any respect to this Agreement or the parties. In any litigation or arbitration between the parties, the prevailing party shall be entitled to reimbursement of its costs, and the court or arbitrator shall award, as costs, reimbursement of such party's reasonable attorneys' fees and other reasonable professional fees.
- Relationship of the Parties. Except as expressly provided herein, nothing in this Agreement shall be: (i) deemed to constitute a partnership or joint venture between the parties or be deemed to constitute one party as agent of the other, for any purpose whatever, and neither party shall have the authority or power to bind the other, or to contract in the name of or create a liability against the other, in any way or for any purpose; or (ii) construed as a limitation on the powers or rights of either party to carry on its separate businesses for its sole benefit, including and not limited to the ability to enter into similar agreements with third parties, and each party shall take no action, directly or indirectly, which may prevent or hinder the other party from fulfilling its obligations to third parties.
- Relief. Each party acknowledges that any violation of the confidentiality, intellectual property of this Agreement will cause irreparable injury to the other party. Therefore, in addition to any other available remedies and damages, such other party shall be entitled to an injunction to restrain the violation thereof by the breaching party, its subsidiaries, agents, servants, employees and all personnel acting for or with it (without the requirement to post a bond or security). Nothing herein shall be construed as prohibiting a non-breaching party from pursuing any other available remedy for breach or threatened breach of this Agreement, including actual damages and reasonable attorney's fees.
- Assignment. Either party may assign this Agreement at any time without a fee and without the consent of the other party to a corporate successor in interest, acquiror or other entity that purchases or obtains substantially all of the assets or stock of such party, provided that such transferee agrees in writing to be bound by the terms and conditions of this Agreement in the place of such party and is not a competitor to the other party. Except as set forth above, Client may not assign or delegate this Agreement without Service Provider's prior written consent, which shall not be unreasonably withheld.
- Notice. All written communications between the parties shall be sent by First Class Mail or recognized courier, properly prepaid and sent to the addresses specified in this Agreement, or by electronic mail or facsimile. All such communications shall be deemed received upon the earlier of: (i) actual receipt or actual delivery to the address specified in accordance with this Agreement; (ii) three days after notice is deposited in a proper mail receptacle; or (iii) upon receipt by the transmitting party of confirmation or answer-back (if delivery is by facsimile or electronic mail). By written communication, either party may designate different contact information for purposes hereof.
- Entire Agreement; Amendments; order of preference. This Agreement may be signed in counterparts, each of which shall be deemed an original and which shall together constitute the entire Agreement. This Agreement, all documents referenced herein, any Order form, and all other written and signed agreements between the parties represent the entire understanding between the parties with respect to the subject matter hereof and supersede all other prior written or oral agreements between the parties with respect to the subject matter hereof. In the event of a conflict between this Agreement and any other written and signed agreement, the agreement that is signed in original ink form shall control over this Agreement. Any waiver or modification of this Agreement will not be effective unless made in writing and signed by the authorized representatives of the parties. In the event of any direct conflict between the terms and conditions of this Agreement and any document referenced herein or any Exhibit, the terms of this Agreement shall control.
- Force Majeure. If either party's performance of this Agreement, other than the payment of monies, is prevented, restricted or interfered with by reason of Force Majeure, such party shall, upon giving prior written notice to the other party, be excused from performance to the extent of the Force Majeure, provided that the party so affected shall use its best efforts to avoid or remove the causes of Force Majeure, and shall continue performance hereunder with the utmost dispatch whenever the Force Majeure is removed. Notwithstanding the foregoing, if the Force Majeure continues for a period of one hundred eighty (180) calendar days or more, the unaffected party may, on written notice to the party affected, terminate this Agreement, and neither party shall have any further obligation to the other save for payment of all monies due and payable and for those provisions hereunder which survive termination of this Agreement.
- Severability. If any provision hereof is declared invalid or unenforceable by a court of competent jurisdiction, then the meaning of that provision will be interpreted, to the extent feasible, in a way that renders it enforceable or valid. If no feasible interpretation is possible, the provision will be severed from this Agreement and the remainder of this Agreement will remain in full force and effect.