Onport terms and conditions
PLEASE READ THESE TERMS AND CONDITIONS (“TERMS”) CAREFULLY BEFORE USING THE SERVICES OFFERED BY Onport, LTD. (“Jetti”). BY SUBMITTING AN ONLINE OR PAPER ORDER FORM WHICH REFERENCES THESE TERMS AND IS ACCEPTED BY Onport (AN “ORDER FORM”), YOU OR THE ENTITY THAT YOU REPRESENT (“CLIENT”) ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY AND ARE BECOMING A PARTY TO THE SERVICES AGREEMENT CONSISTING OF SUCH ORDER FORM AND THESE TERMS (THE “AGREEMENT”) WITH RESPECT TO THE SERVICES BEING PROVIDED BY Onport. IF A SEPARATE SIGNED WRITTEN AGREEMENT WITH RESPECT TO THE SERVICES EXISTS BETWEEN CLIENT AND Onport, THE TERMS OF THAT SIGNED WRITTEN AGREEMENT (EXCLUDING THE PRE-PRINTED TERMS OF ANY PURCHASE ORDER, CONFIRMATION OR SIMILAR DOCUMENT, WHICH WILL HAVE NO EFFECT AND WILL NOT BE CONSIDERED AGREED TO BY Onport) SHALL TAKE PRECEDENCE OVER THIS AGREEMENT, AND YOU ACKNOWLEDGE THAT CLIENT IS BOUND BY THE TERMS OF THAT SIGNED WRITTEN SERVICES AGREEMENT. PROVISION OF THE SERVICES IS CONDITIONED ON, AND CLIENT’S INSTALLATION OR USE OF THE SERVICES SHALL CONSTITUTE, CLIENT’S ASSENT TO THE TERMS OF THIS AGREEMENT OR OF SUCH EXISTING SEPARATE WRITTEN AGREEMENT TO THE EXCLUSION OF ALL OTHER TERMS. IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT SUBMIT AN ORDER FORM, AND YOU WILL HAVE NO RIGHT TO USE THE SERVICES. IF THESE TERMS ARE CONSIDERED AN OFFER, ACCEPTANCE IS EXPRESSLY LIMITED TO THESE TERMS TO THE EXCLUSION OF ALL OTHER TERMS.
Order Forms; Access to the Service
Upon mutual execution (or online submission that is accepted by Onport), each Order Form shall be incorporated into and form a part of the Agreement. Subject to Client’s compliance with the terms and conditions of this Agreement (including any limitations and restrictions set forth on the applicable Order Form) Onport grants Client the right and license to access and use the services specified in each Order Form (collectively, the “Service,” or “Services”) during the applicable Order Form Term (as defined below) for the internal business purposes of Client, only as provided herein and only in accordance with Onport’ applicable official user documentation (the “Documentation”). The Order Form may specify certain limitations or restrictions on the Client’s use of the Services (including, without limitation, the number of orders over a designated timeframe, integrated channels, users or other services and features) (“Limits”), and it is Client’s sole responsibility to monitor its usage in order to comply with such Limits.
Upon payment of any applicable fees set forth in each Order Form, Onport agrees to use reasonable commercial efforts to provide standard implementation assistance for the Service only if and to the extent such assistance is set forth on such Order Form (“Onboarding Assistance”). If Onport provides Onboarding Assistance in excess of any agreed-upon hours estimate, or if Onport otherwise provides additional services beyond those agreed in an Order Form, Client will pay Onport at its then-current hourly rates for consultation.
Support; Service Levels
Onport will use reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for emergency maintenance, planned down-time for maintenance, if ordered by a law enforcement or government agency or if Onport believes, in its sole discretion, (a) an interruption may be required for security or emergency-related purposes, or by applicable law or (b) that Client’s use of the Service poses an unreasonable risk to Onport or a Onport customer.
As between the parties, Onport retains all right, title, and interest in and to the Services, and all software, products, works, and other intellectual property and moral rights related thereto or created, used, or provided by Onport for the purposes of this Agreement, including any copies and derivative works of the foregoing. No rights or licenses are granted except as expressly and unambiguously set forth in this Agreement. Client may from time to time provide suggestions, comments or other feedback to Onport with respect to the Service (“Feedback”). Feedback, even if designated as confidential by Client, shall not create any confidentiality obligation for Onport notwithstanding anything else. Client shall, and hereby does, grant to Onport a nonexclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose. Nothing in this Agreement will impair Onport’ right to develop, acquire, license, market, promote or distribute products, software or technologies that perform the same or similar functions as, or otherwise compete with any products, software or technologies that Client may develop, produce, market, or distribute.
Client shall pay Onport fees for the Service as set forth in each Order Form (“Fees”). Unless otherwise specified in an Order Form, all Fees shall be invoiced monthly in advance and all invoices issued under this Agreement are payable in U.S. dollars within thirty (30) days from date of invoice. Past due invoices are subject to interest on any outstanding balance of the lesser of 1.5% per month or the maximum amount permitted by law. Client shall be responsible for all taxes associated with the Services (excluding taxes based on Onport’ net income). All Fees paid are non-refundable and are not subject to set-off. If Client chooses to upgrade or downgrade the level of Service, Client may be required to execute a new Order Form and different fees and features may apply. Onport may, in its discretion, increase Fees at the beginning of each renewal period; provided that, Onport provides Client with notice of such increase at least forty-five (45) days prior to the beginning of the applicable renewal period, and Client acknowledges and agrees that the posting of such Fees at www.jetti.io/pricing is sufficient notice of the foregoing.
If Client exceeds the Limits, Client will be automatically charged additional Fees in accordance with the then-current fee schedule set forth at with www.jetti.io/pricing.
If the Client makes payment by credit card, Client hereby authorizes Onport to charge Client’s credit card at the expiration of Client’s free trial period, if any, and on Client’s invoice date until this Agreement is terminated. For clarity, an upgrade from any free version of the Service to a paying version will end Client’s free trial period, and Client will be billed for its Initial Order Form Term immediately upon such upgrade.
Except as expressly set forth in this Agreement, Client shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service; (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) remove or otherwise alter any proprietary notices or labels from the Service or any portion thereof; (v) use the Services for timesharing or service bureau purposes; (vi) use the Service to build an application or product that is competitive with any Onport product or service; (vii) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (viii) bypass any measures Onport may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Client is responsible for all of Client’s activity in connection with the Service, including but not limited to uploading Client Data (as defined below) onto the Service. Client (a) shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Client’s use of the Service (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws), and (b) shall not use the Service in a manner that violates any third party intellectual property, contractual or other proprietary rights.
Client acknowledges and agrees that the Service may operate on or with or use services operated or provided by third parties (“Third Party Services”). Onport is not responsible for the operation of any Third Party Services nor the availability or operation of the Service to the extent such availability and operation is dependent upon Third Party Services. Onport does not make any representations or warranties with respect to Third Party Services or any third party providers. Any exchange of data or other interaction between Client and a third party provider is solely between Client and such third party provider and is governed by such third party’s terms and conditions. Third party provider is not responsible to provide support services in connection with the Service.
Confidentiality; Client Data; Publicity
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to the Disclosing Party’s technology or business (hereinafter referred to as “Proprietary Information” of the Disclosing Party).
The Receiving Party agrees: (i) not to divulge to any third person any such Proprietary Information, (i) to give access to such Proprietary information solely to those employees with a need to have access thereto for purposes of this Agreement, and (iii) to take the same security precautions to protect against disclosure or unauthorized use of such Proprietary Information that the party takes with its own proprietary information, but in no event will a party apply less than reasonable precautions to protect such Proprietary Information. The Disclosing Party agrees that the foregoing will not apply with respect to any information that the Receiving Party can document (a) is or becomes generally available to the public without any action by, or involvement of, the Receiving Party, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party. Nothing in this Agreement will prevent the Receiving Party from disclosing the Proprietary Information pursuant to any judicial or governmental order, provided that the Receiving Party gives the Disclosing Party reasonable prior notice of such disclosure to contest such order.
For purposes of this Agreement, “Client Data” shall mean any data, information or other material provided, uploaded, or submitted by Client to the Service in the course of using the Service. Client shall retain all right, title and interest in and to the Client Data, including all intellectual property rights therein. Client, not Onport, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Client Data. Onport shall use commercially reasonable efforts to maintain the security and integrity of the Service and the Client Data. Onport is not responsible to Client for unauthorized access to Client Data or the unauthorized use of the Service unless such access is due to Onport’ gross negligence or willful misconduct. Client is responsible for the use of the Service by any person to whom Client has given access to the Service, even if Client did not authorize such use. Client agrees and acknowledges that Client Data may be irretrievably deleted if Client’s account is ninety (90) days or more delinquent. Notwithstanding anything to the contrary, Client acknowledges and agrees that Onport may (i) internally use and modify (but not disclose) Client Data for the purposes of (A) providing the Services and any support or consultation services to Client and (B) generating Aggregated De-Identified Data (as defined below), and (ii) freely use and make available Aggregated De-Identified Data for Onport’ business purposes (including without limitation, for purposes of improving, testing, operating, promoting and marketing Onport’ products and services). “Aggregated De-Identified Data” means data submitted to, collected by, or generated by Onport in connection with Client’s use of the Service, but only in aggregate, anonymized form which can in no way be linked specifically to Client or any individual. Notwithstanding anything else, Onport is permitted to disclose (including through display of Client’s logo) that Client is one of its customers (including in its publicity and marketing materials), provided that Client may revoke the foregoing rights upon prior written notice to Onport.
This Agreement shall commence upon the effective date set forth in the first Order Form, and, unless earlier terminated in accordance herewith, shall last until the expiration of all Order Form Terms. For each Order Form, the “Order Form Term” shall begin as of the effective date set forth on such Order Form, and unless earlier terminated as set forth herein, (x) shall continue for the initial term specified on the Order Form (the “Initial Order Form Term”), and (y) following the Initial Order Form Term, shall automatically renew for additional successive periods of the same length as the Initial Order Form Term (each, a “Renewal Order Form Term”) unless either party notifies the other party of such party’s intention not to renew no later than thirty (30) days prior to the expiration of the Initial Order Form Term or then-current Renewal Order Form Term, as applicable. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by providing written notice to the breaching party, provided that the breaching party does not materially cure such breach within thirty (30) days of receipt of such notice. Without limiting the foregoing, Onport may suspend or limit Client’s access to or use of the Service if (i) Client’s account is more than thirty (30) days past due, (ii) Onport determines, in its sole discretion, that Client’s business plans are competitive with those of Onport, or (iii) Client’s use of the Service results in (or is reasonably likely to result in) damage to or material degradation of the Service which interferes with Onport’ ability to provide access to the Service to other customers; provided that in the case of subsection (iii): (a) Onport shall use reasonable good faith efforts to work with Client to resolve or mitigate the damage or degradation in order to resolve the issue without resorting to suspension or limitation; (b) prior to any such suspension or limitation, Onport shall use commercially reasonable efforts to provide notice to Client describing the nature of the damage or degradation; and (c) Onport shall reinstate Client’s use of or access to the Service, as applicable, if Client remediates the issue within thirty (30) days of receipt of such notice. Client agrees and acknowledges that Client Data may be irretrievably deleted upon termination of this Agreement. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, accrued payment obligations, ownership provisions, warranty disclaimers, indemnity and limitations of liability.
Client shall defend, indemnify, and hold harmless Onport, its affiliates and each of its and its affiliates’ employees, contractors, directors, suppliers, partners, third party service providers and representatives from all liabilities, claims, and expenses (“Losses”), that arise from or relate to the Client Data or Client’s use of the Service.
EXCEPT FOR ANY EXPRESS WARRANTIES SET FORTH HEREIN, THE SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE” AND IS WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE, USAGE OF TRADE, OR COURSE OF DEALING, ALL OF WHICH ARE EXPRESSLY DISCLAIMED.
Limitation of Liability
IN NO EVENT SHALL Onport, NOR ITS DIRECTORS, EMPLOYEES, AGENTS, PARTNERS, THIRD PARTY SERVICE PROVIDERS, SUPPLIERS OR CONTENT PROVIDERS, BE LIABLE UNDER CONTRACT, TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT (I) FOR ANY LOST PROFITS, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER, (II) FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), OR (III) FOR ANY DIRECT DAMAGES IN EXCESS OF (IN THE AGGREGATE) THE FEES PAID (OR PAYABLE) BY CLIENT TO Onport HEREUNDER IN THE TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO A CLAIM HEREUNDER.
This Agreement represents the entire agreement between Client and Onport with respect to the subject matter hereof, and supersedes all prior or contemporaneous communications and proposals (whether oral, written or electronic) between Client and Onport with respect thereto. The Agreement shall be governed by and construed in accordance with the laws of the State of California, excluding its conflicts of law rules. Except for claims for injunctive or equitable relief or claims regarding intellectual property rights (which may be brought in any competent court), any dispute arising under this Agreement shall be finally settled in accordance with the Streamlined Rules of Arbitration of JAMS by one arbitrator appointed in accordance with such Rules. The arbitration shall take place in San Francisco, California, USA, in the English language and the arbitral decision may be enforced in any court. With respect to all disputes arising in relation to this Agreement, but subject to the preceding arbitration provision, the parties consent to exclusive jurisdiction and venue in the state and federal courts located in San Francisco, California. All notices under this Agreement shall be in writing and shall be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; or the day after it is sent, if sent for next day delivery by recognized overnight delivery service. Notices must be sent to the contacts for each party set forth on the Order Form. Either party may update its address set forth above by giving notice in accordance with this section. Except as otherwise provided herein, this Agreement may be amended only by a writing executed by both parties. Except for payment obligations, neither party shall be liable for any failure to perform its obligations hereunder where such failure results from any cause beyond such party’s reasonable control, including, without limitation, the elements; fire; flood; severe weather; earthquake; vandalism; accidents; sabotage; power failure; denial of service attacks or similar attacks; Internet failure; acts of God and the public enemy; acts of war; acts of terrorism; riots; civil or public disturbances; strikes, lock-outs or labor disruptions; any laws, orders, rules, regulations, acts or restraints of any government or governmental body or authority, civil or military, including the orders and judgments of courts. Neither party may assign any of its rights or obligations hereunder without the other party’s consent; provided that (i) either party may assign all of its rights and obligations hereunder without such consent to a successor-in-interest in connection with a sale of substantially all of such party’s business relating to this Agreement, and (ii) Onport may utilize subcontractors in the performance of its obligations hereunder. No agency, partnership, joint venture, or employment relationship is created as a result of this Agreement and neither party has any authority of any kind to bind the other in any respect. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and attorneys’ fees. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable. The failure of either party to act with respect to a breach of this Agreement by the other party shall not constitute a waiver and shall not limit such party’s rights with respect to such breach or any subsequent breaches.