THESE TERMS OF SERVICE (THE “AGREEMENT”) GOVERN THE RELATIONSHIP BETWEEN CONNECTIONOPEN, INC. (“CONNECTIONOPEN”) AND THE ENTITY IDENTIFIED AS THE LICENSING ENTITY IN THE APPLICABLE ONLINE ORDERING PROCESS (THE “LICENSEE”) AND APPLY TO LICENSEE’S PURCHASE AND ONGOING USE OF THE APPLICATION DESCRIBED BELOW, INCLUDING ANY FREE TRIALS.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY DOWNLOADING THE APPLICATION, OR BY COMMENCING USE OF THE APPLICATION (WHETHER DURING A FREE TRIAL PERIOD OR OTHERWISE), LICENSEE AGREES TO THE TERMS OF THIS AGREEMENT. IF THE SIGNING PARTY IS AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE APPLICATION.
THESE TERMS OF SERVICE ARE EFFECTIVE BETWEEN CONNECTIONOPEN AND LICENSEE AS OF THE DATE OF LICENSEE FIRST TAKES ANY STEP TO AFFIRMATIVELY ASSENT TO THEM (AS DESCRIBED HEREIN), AND ANY UPDATES WILL BE EFFECTIVE WHEN POSTED AS DESCRIBED IN MORE DETAIL IN SECTION 10 BELOW. THE TERMS WERE LAST UPDATED ON OCTOBER 23, 2018.
For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
1. Definitions. As used in this Agreement:
"Application" means the online communication platform known as “ConnectionOpen,” as it may be enhanced, modified and updated.
“Application Data” means (i) anonymous usage data relating to Users’ activities within the Application; (ii) any information provided to ConnectionOpen by Users of the Application (e.g., account information); and (iii) any other data, materials or information input into the Application by Licensee or its Users.
“Free Trial Period” means any free trial period Licensee is provided, as outlined in the terms of the Subscription Plan chosen by Licensee, during which time Licensee may access and utilize the Application, under the terms and conditions herein, at no cost.
"Subscription Term" means the Free Trial Period and any addition term commencing on the start of the Subscription Plan and ending on the cancellation of the Subscription Plan or other termination of this Agreement.
“Subscription Fees” means the monthly subscription fees included in Licensee’s chosen Subscription Plan.
“Subscription Plan” means the recurring plan chosen by Licensee when ordering the Application, as it may be later modified.
“Users” means the users given access to the Application by Licensee.
2.1 License. ConnectionOpen hereby grants to Licensee a non-exclusive, non-transferable, non-sublicensable limited right and license to download, install and otherwise make use of the Application during the Subscription Term on the terms of the Subscription Plan and this Agreement. The foregoing license shall include a license to any improvements, updates, modifications or developments ConnectionOpen may make to the Application in its discretion.
2.2 Technical Requirements. Use of the Application requires both parties to any session to (i) have registered accounts with the Application; (ii) meet the following technical specifications: Windows 10/Mac El Capitan-High Sierra; and (iii) have access to broadband Internet connectivity (“Internet Connection”). All use of any Internet Connection is subject to the terms provided by the applicable Internet service provider, and/or network operator, including any payment terms.
3. Use of the Application.
3.2 Licensee Responsibilities. Licensee shall have sole responsibility for (i) all activities taking place on the Application through its account, including all activities of its Users; (ii) the compliance in the use and exploitation of the Application by Licensee and its Users with all applicable local, state, federal, and foreign laws, rules and regulations; and (iii) acquiring any necessary hardware, services or software required to use the Application.
3.3 Use Guidelines. Without limiting the above, Licensee shall not use the Application to: (i) send spam or any other form of duplicative and unsolicited messages; (iii) transmit through the Application unlawful, libelous, tortuous, infringing, defamatory, threatening, or illegal material or content; (iv) knowingly transmit viruses or other harmful or deleterious computer code, files, scripts, agents, or programs; (v) knowingly interfere with or disrupt the integrity or performance of the Application or the Application Data contained therein; or (vi) harass or interfere with another user’s use and enjoyment of the Application.
3.4 Technical Support. The Application includes instructions on setup and use that are intended to provide Licensee and its Users will all information reasonably required to use the Application. Subscription Plans do not entitled Licensee or its Users to any technical support in using the Application.
3.5 Emergency Services. The Application is not a substitute for traditional telephone services and cannot and should not be relied upon to provide emergency call services. Licensee shall at all times retain a separate means by which emergency calls can be made.
4. Fees & Payment.
4.1 Free Trial Periods. Licensee’s use of the Application pursuant to the terms of this Agreement will be at no charge during any agreed-upon Free Trial Periods. When signing up for a free trial, Licensee will be asked to provide a payment method and agree to be billed for the specified Subscription Fees at the end of the Free Trial Period unless Licensee cancels beforehand (as described below). If Licensee does not cancel prior to the expiration of the Free Trial Period, Licensee’s payment method will be charged the Subscription Fees immediately upon expiration and, thereafter, the Subscription Plan will automatically renew for consecutive subscription periods unless and until Licensee cancels the Subscription Plan as described herein.
4.2 Subscription Plans. Once a paid Subscription Plan commences, Licensee’s payment method will be charged the Subscription Fees each subscription period and Licensee’s subscription will continue to renew on a monthly basis without renewal notices unless and until Licensee cancels by following the steps set forth below. All Subscription Fees are quoted in United States Dollars.
4.3 Invoicing. Each paid Subscription Plan begins as soon as Licensee’s initial payment is processed. Licensee’s payment method will be charged the applicable Subscription Fee on the “monthly anniversary” of its order. All account holders can see their next payment date by visiting the “Billing” tab of their account page.
4.4 Cancellation. Licensee may cancel a Subscription Plan, including any free trial, at any time by going to the “Billing” tab on its account page and clicking "Cancel Subscription". Licensee must cancel its Subscription Plan prior to the commencement of the next subscription period to avoid being charged its Subscription Fees for that period. If Licensee cancels its Subscription Plan, its account will automatically close at the end of its current subscription period.
4.5 Payment Method. When ordering a Subscription Plan, Licensee will be required to provide a valid payment method. If Licensee makes any changes to the payment method associated with its account, Licensee agrees to update the applicable information on the “Billing” tab of its account page. Failure to do so may lead to a cancellation of Licensee’s Subscription Plan and the loss of access to the Application.
4.6 Refunds. All payments made hereunder are non-refundable. Nevertheless, at any time, and for any reason, ConnectionOpen may choose to provide a refund, discount, or other consideration to Licensee or any of its other subscribers ("credits"). The amount and form of such credits, and the decision to provide them, are at ConnectionOpen’s sole and absolute discretion. ConnectionOpen’s choice to give a credit to Licensee or any other subscriber in one instance does not entitle Licensee to credits in the future for similar instances, or under any other circumstance.
4.7 Changes. ConnectionOpen reserves the right to make changes to the features offered by the Application at any time. In addition, ConnectionOpen may change Licensee’s monthly Subscription Fee at any time in its sole discretion; however, any price changes will not be implemented until Licensee’s next subscription period and ConnectionOpen will always give Licensee reasonable notice prior to such implementation. If Licensee does not agree to the new Subscription Fee, it can cancel its Subscription Plan before the next subscription period by following the cancellation steps set forth above. If Licensee does not cancel, it will be charged the new Subscription Fee commencing with the next subscription period.
4.8 Suspension of Service. If Licensee’s account is 10 days or more overdue, in addition to any of its other rights or remedies, ConnectionOpen reserves the right to suspend Licensee’s access to the Application, without prior notice or liability to the Licensee, until such amounts are paid in full.
4.9 Billing and Contact Information. Licensee shall maintain complete, accurate, and up-to-date billing and contact information at all times.
5. Proprietary Rights.
5.1 Reserved Rights. All worldwide right, title, and interest in and to the Application and the Application’s underlying intellectual property rights remains with ConnectionOpen, and Licensee shall not acquire any interest therein except the limited right to use the same pursuant to this Agreement. The Application is licensed, not sold. The rights owned and retained by ConnectionOpen include: (i) all ConnectionOpen trademarks; and (ii) all technology, software code (source, object or compiled), products, processes, algorithms, user interfaces, know-how, works of authorship and other trade secrets, techniques, designs, inventions, and other tangible or intangible technical material or information used to provide the Application and all intellectual property rights therein; and (iii) any and all Application Data.
5.2 Restrictions. Licensee shall not (i) reverse engineer, decompile or disassemble the Application; (ii) copy, customize, modify, sublicense, rent, lease, lend, sell, distribute, publicly perform, publicly display or transfer any part of the Application except as provided in this Agreement; (iii) distribute any enhancements, improvements or derivative works based upon the Application; (iv) commercially exploit the Application or any portion thereof or transfer the Application or this Agreement to any third party; (v) copy, review or analyze the Application for the purposes of creating or which results in the creation or development of other technology, or other tools, products or services, which are functionally, visually or otherwise identical or substantially similar to the Application; (vi) attempt to gain unauthorized access to the Application, computer systems, or networks related to the Application or (vii) remove or obscure any copyright, trademark, and/or other proprietary rights notices from the Application.
5.3 Publicity. ConnectionOpen shall be permitted to use Licensee’s name, trademark and/or logo in external marketing or promotional materials, including on ConnectionOpen’s website, in testimonial content, and in press releases, and within internal materials, including case studies and decks, to indicate that Licensee is a client of ConnectionOpen and to demonstrate examples of Licensee’s use of the Application.
5.4 Suggestions, Ideas and Feedback. ConnectionOpen shall have the unrestricted right and license to use or act upon any suggestions, ideas, enhancement requests, feedback, recommendations, or other information provided by Licensee or any other party relating to the Application, including its features and its functionality.
6. Warranties & Disclaimers.
6.1 ConnectionOpen Warranties. ConnectionOpen represents and warrants that the Application does not infringe upon the copyright, patent right, trade secret right or other intellectual property rights of any third party or violate any applicable laws, rules or regulations.
6.2 Licensee Warranties. Licensee represents and warrants that (i) Licensee and its Users will not use the Application or submit or transmit any Application Data in a manner that infringes upon the copyright, patent right, trade secret right or other intellectual property rights of any third party; and (ii) Licensee and its Users will only use the Application in full compliance of all applicable laws, rules and regulations.
6.3 Disclaimer of Warranties. EXCEPT AS PROVIDED ABOVE, THE APPLICATION IS PROVIDED "AS IS, AS AVAILABLE" AND WITH ALL FAULTS. LICENSEE ASSUMES AND BEARS ALL RISKS ASSOCIATED WITH THE DOWNLOAD, INSTALLATION AND USE OF THE APPLICATION. EXCEPT AS OTHERWISE PROVIDED HEREIN, CONNECTIONOPEN DOES NOT PROVIDE ANY EXPRESS OR IMPLIED WARRANTY OF ANY KIND INCLUDING WARRANTIES OF MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, OR THAT THE OPERATION OF THE APPLICATION WILL BE UNINTERRUPTED OR ERROR-FREE. The Application may be temporarily unavailable from time to time for maintenance or other reasons. ConnectionOpen does not warrant or assume responsibility for the accuracy or completeness of any information, text, graphics, links or other items contained within or transmitted through the Application. ConnectionOpen is not responsible for any problems or technical malfunction of any telephone network or lines, computer online systems, internet connections, servers or providers, computer equipment, third party software, failure of email on account of technical problems or traffic congestion on the Internet or at any web site or combination thereof, including injury or damage to users or to any other person's computer related to or resulting from participating or downloading materials in connection with the Application. Licensee may have additional rights under local laws in its jurisdiction which this Agreement cannot change.
7.1 Indemnification by Licensee. Licensee shall defend, indemnify, and hold ConnectionOpen, its officers, directors, employees, affiliates, successors, agents and representatives harmless against any loss or damage (including without limitation reasonable attorney's fees) incurred in connection with claims, demands, suits, or proceedings made or brought against ConnectionOpen by a third party (“Claim”) arising out of (i) a breach of Licensee’s reps, warranties, covenants or agreements herein; (ii) Licensee’s intentional misconduct or gross negligence; or (iii) the acts or omissions of Licensee’s Users with respect to their use of the Application.
7.2 Process. ConnectionOpen shall (i) promptly give written notice of the Claim to Licensee; (ii) give Licensee sole control of the defense and settlement of the Claim (provided that Licensee may not settle or defend any Claim unless it unconditionally releases ConnectionOpen of all liability without the obligation to take or refrain from any action or pay any amounts); and (iii) provide to Licensee, at Licensee's cost, all reasonable assistance.
8. Limitation of Liability and Action.
8.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES, OR FOR LOST PROFITS, REVENUES, USE OR DATA ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE CUMULATIVE LIABILITY OF ONE PARTY TO ANOTHER FOR ALL CLAIMS WHATSOEVER ARISING OUT OF THIS AGREEMENT, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, WARRANTY, TORT, OR STRICT LIABILITY (BUT EXCLUDING EACH PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN) SHALL NOT EXCEED THE TOTAL AMOUNT OF FEES PAID BY LICENSEE TO CONNECTIONOPEN DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE LOSS OR, IF NO FEES HAVE BEEN PAID, $5,000.
8.2 Limitation of Action. Except for actions for non- payment or breach of either party’s intellectual property rights, no action (regardless of form) arising out of this Agreement may be commenced by either party more than one (1) year after the date such claim or cause of action accrued.
9. Term / Termination.
9.1 Term. Either party may cancel the Subscription Term at any time. ConnectionOpen may do so by giving Licensee 10 days’ written notice. Licensee may do so by following the steps described above in the “Cancellation” section of this Agreement. The rights granted hereunder shall be valid solely during the Subscription Term. Upon the expiration, cancellation or termination of the Subscription Term, all use of the Application and the exploitation of any other rights granted by ConnectionOpen hereunder shall immediately cease.
9.2 Surviving Provisions. The following provisions shall survive the termination or expiration of this Agreement for any reason and shall remain in effect after any such termination or expiration: Sections 5, 6, 7, 8, 9, and 11, and any other provisions reasonably expected to survive given their subject matter.
10. Changes to these Terms of Service. ConnectionOpen may revise these Terms of Service from time to time. If so, those revised Terms of Service will supersede prior versions. Revisions will be effective upon the “last updated” date indicated at the top of these Terms of Service. ConnectionOpen will use good faith efforts to provide advance notice of any material revisions. Licensee is encouraged to check the effective date of these Terms of Service whenever it visits ConnectionOpen’s website. Licensee’s continued access or use of the Application constitutes its acceptance of any revisions. Licensee must cease any use of the Application and cancel its Subscription Plan in the event it does not agree to the Terms of Service, as they may be modified as described herein.
11. General Provisions.
11.1 Relationship of the Parties. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.2 No Benefit to Others. The representations, warranties, covenants, and agreements contained in this Agreement are for the sole benefit of the parties and their respective successors and permitted assigns, and they are not to be construed as conferring any rights on any other persons, including any individual User.
11.3 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.4 Severability. If any provision of this Agreement is held by a court or arbitrator of competent jurisdiction to be contrary to law, the provision shall be changed by the court or by the arbitrator and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect, unless the modification or severance of any provision has a material adverse effect on a party, in which case such party may terminate this Agreement by notice to the other party.
11.5 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior express written consent of the other party. Notwithstanding the foregoing, either party may assign this Agreement without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section 11.5 shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.6 Governing Law & Venue. This Agreement shall be governed by and construed under the internal laws of the State of Texas, without regard to any conflicts of law principles. The application of Uniform Computer Information Transactions Act (UCITA) or the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. The federal and state courts located in Travis County Texas shall have jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the jurisdiction of such courts and waives any right it may otherwise have to challenge the appropriateness of such forums, whether on the basis of the doctrine of forum non conveniens or otherwise.
11.7 Export Control Laws. Each party shall comply with all United States and foreign export control laws or regulations applicable to its performance under this Agreement.
11.8 Entire Agreement and Construction. This Agreement constitutes the entire agreement between the parties as to its subject matter, and supersedes all previous and contemporaneous agreements, proposals, or representations, written or oral, concerning the subject matter of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Licensee purchase order or in any other Licensee order documentation shall be incorporated into or form any part of this Agreement.
11.9 Effectiveness. This Agreement shall be valid and binding on Licensee upon Licensee’s affirmative assent to it in any manner, which may be in the form of checking a box during the registration process to indicate Licensee’s agreement to the terms of this Agreement but will also be deemed to occur upon Licensee’s commencement of use of the Application, whether during the Free Trial Period or otherwise. No written signature is required.
11.10 Force Majeure. Neither party will be deemed in breach of this Agreement if the failure to perform is caused by circumstances beyond its reasonable control, including without limitation acts of God, acts of government, flood, fire, earthquake, civil unrest, acts of terror, strikes or labor problems, computer, internet, or telecommunications failures, delays or network intrusions, or denial of service attacks.