Last Updated: August 10, 2020
Terms of Service
Please read these Terms of Service (the “Agreement”) carefully before using the website, Platform, and Services operated by Osano, Inc., a Public Benefit Corporation ("Osano"). This Agreement is a contract between visitors to the Osano website (“Visitors”), users of the Platform and Services (“Authorized Users”), and customers of Osano (“Customers”) (collectively “Users”) and Osano. By visiting the Osano website and using the Platform and Services, Users are agreeing to these terms. Osano periodically updates these terms. Authorized Users and Customers that have an active Osano account will be informed of any updates to this Agreement via an email or in-app notification. The parties agree as follows:
“Affiliate” means a person or entity that owns, is owned by, or is under common control with a Party, and “control” in this definition means that a person or entity owns more than 50% of the equity interest of any entity and/or has the ability to control the management of such entity.
“Account” means a unique account created for Authorized Users to access the Services.
“Authorization Form” means a document issued by Osano and executed or otherwise agreed upon by authorized representatives of Enterprise Customer which specifies the details of the specific Services to be provided to Authorized Users.
“Authorized Users” means individuals who are authorized by Customer to use the Platform and Services with varying levels of control and access specified by Customer and who have been supplied user identifications and passwords by Customer.
“Content” means any text, documents, data, applications, images, and other files created by Osano and provided through the Services.
“Customer Information” means all information and data submitted to Osano by or on behalf of Customer in connection with the creation and management of Customer’s account for the Services.
“Enterprise Customer” means Customer who subscribes to Osano’s Enterprise subscription plan.
“Platform” means the Osano proprietary “Software as a Service” (defined herein) that enable businesses to manage their own risk as it relates to data governance, data privacy, and compliance.
“Services” means access to the Platform and services, via an account, that are ordered by and paid for by Customer and made available by Osano.
“Service Start Date” means the date on which Customer is granted access to the Services purchased pursuant to registration for services.
“Software as a Service” (“SaaS”) means a software delivery model in which a software platform is made available on a subscription basis and is centrally hosted.
"System Availability" means the percentage of minutes in a month that the key components of the Services are operational.
2. Osano Services
2.1 Services. During the Term (as defined herein), subject to the terms and conditions of this Agreement for such Services, and solely for Customer’s internal business and non-commercial purposes, Osano shall make the Services available to Customer in accordance with the subscription plan selected during the registration process.
2.2 Updates and Functionalities. Customer acknowledges that, from time to time, Osano may apply updates to the Services and that such updates may result in changes in the appearance and/or functionality of such Platform and Services (including the addition, modification, or removal of functionality, features or content). Excluding the addition of wholly new products, Osano will provide, implement, configure, install, support, and maintain at its own cost any and all updates, upgrades, enhancements, improvements, releases, corrections, bug fixes, patches, and modifications to the Services (collectively, the “Updates”).
2.3 Acceptable Use Policy.
(a) be responsible for Authorized Users’ compliance with this Agreement;
(b) use commercially reasonable efforts to prevent unauthorized access to or use of the Platform or Services, including keeping passwords and user names confidential and not permitting any third party to access or use it's or any of its Authorized Users’ user names, passwords, or Customer account for the Services;
(c) be solely responsible and liable for all activity conducted through its Customer account in connection with the Services;
(d) promptly notify Osano if Customer becomes aware of or reasonably suspects any security breach, including any loss, theft, or unauthorized disclosure or use of Customer’s (or any Authorized User’s) user name, passwords, or Customer account; and
(e) use, or otherwise access in connection with Customer’s use thereof, the Services only in accordance with applicable laws and government regulations.
Customers must not:
(a) make the Platform or Services available to anyone other than the Authorized Users;
(b) sell, trade, or otherwise transfer the Content, Platform or Services to another party;
(c)use the Services to store or transmit any content that may be infringing, defamatory, threatening, harmful, or otherwise tortious or unlawful, including any content that may violate the intellectual property, privacy, rights of publicity, or other laws, or send spam or other unsolicited messages in violation of applicable law; upload to, or transmit from, the Platform or Services any data, file, software, or link that contains or redirects to a virus, Trojan horse, worm, or other harmful components;
(d) attempt to reverse engineer, decompile, hack, disable, interfere with, disassemble, modify, copy, translate, or disrupt the features, functionality, integrity, or performance of the Platform or Services (including any mechanism used to restrict or control the functionality of the Platform or Services), any third-party use of the Platform or Services, or any third-party data contained therein (except to the extent such restrictions are prohibited by applicable law);
(e) attempt to modify or cause to be hidden any Osano “powered by” branding without prior written consent.
(f) probe, scan, or test the vulnerability of any Content, systems, networks, servers or accounts related to the Platform or Services or attempt to gain unauthorized access to the Platform or Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform or Services;
(g) attempt to gain unauthorized access to the Platform or Services or related systems or networks or to defeat, avoid, bypass, remove, deactivate, or otherwise circumvent any software protection or monitoring mechanisms of the Platform or Services;
(h) access the Platform or Services in order to build a similar or competitive product or service to Platform or Services; or
(i) commit any act or do anything which might: (1) reasonably be considered immoral, deceptive, or obscene; (2) injure, tarnish, damage or otherwise negatively affect the reputation and goodwill associated with Osano;
(j) knowingly implement Osano in a manner which is inconsistent with data privacy laws of Customer's website visitor(s) or application user(s)
(k) authorize, assist, or encourage any third party to do any of the above.
Customer agrees that Osano may suspend, for any time period within Osano’s sole and absolute discretion, or terminate its access to the Platform or Services for a violation of this Section 2.3 or for any abusive practices that degrade the performance of any Service for Customer and/or other Osano customers.
2.4 Non-Exclusivity. Users acknowledge that the rights granted to it under this Agreement are non-exclusive and that nothing in this Agreement will be interpreted or construed to prohibit or in any way restrict Osano’s right to license, sell, or otherwise make available the Platform or Services to any third party or perform any services for any third party.
3. Intellectual Property
3.1 Platform and Services. As between Customer and Osano, Osano retains all rights, title, and interest in and to the Platform and Services. Nothing herein shall be construed to restrict, impair, encumber, alter, deprive, or adversely affect the Services or any of Osano’s rights or interests therein or any other Osano intellectual property, brands, information, content, processes, methodologies, products, goods, services, materials, or rights, tangible or intangible. All rights, title, and interest in and to the Platform and Services not expressly granted in this Agreement are reserved by Osano.
3.2 Feedback. Customer may from time to time provide suggestions, comments, or other feedback to Osano with respect to the Platform and Services (“Feedback”). Feedback, even if designated as confidential by Customer and, notwithstanding Section 5 of this Agreement, shall not create any confidentiality obligation for Osano. Customer shall, and hereby does, grant to Osano a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose.
4. Subscription, Payment, and Free Trial Period
4.1 Subscription Plan and Terms. Osano offers a range of subscription plans for the Osano Services and Platform, including “Basic,” “Business,” “Business+”, and “Enterprise.” As an express condition of Customer’s use of and access to the Osano Services and Platform, Customer agrees to pay all fees applicable to the subscription plan for which Customer registered (the “Plan”). The product features available to Customers of different subscription plans are available here.
4.2 Fees. Customer will pay all fees as and when described in the registration process on the Osano website or in the applicable Authorization Form(s) (for Enterprise Customers) (the “Fees”). The fee for Customer’s Plan is billed in advance, is non-refundable, and automatically renews on a monthly or annual basis, as specified in the applicable Plan. No refunds or credits will be provided for partial months of Plans.
4.3 Plan Cancellation. If Customer cancels a Plan before the end of a current pre-paid period, Customer will not be charged again for the Plan beginning with the next billing cycle. If Customer cancels a Plan, Customer will lose all access, upon expiration of the current pre-paid period, to the Osano Services and Platform and any data associated with Customer’s account. Upon cancellation, Customers subscribing to the Basic Plan will not be able to retrieve any data associated with their account.
4.4 Free Trial Period. During the registration process, Osano may offer a one-time free trial period during which Customers may use the Osano Services and Platform for 7 days from the date of registration without pre-paying in advance (“Free Trial Period”).
- Customer is required to provide valid credit card payment information In order to create an Account and access the Osano Platform and Services for the trial period.
- Customers who participate in a Free Trial Period must cancel their subscription by the end of the Free Trial Period to avoid incurring charges. If Customer does not cancel before the Free Trial Period expires, Customer authorizes Osano to charge the Customer’s credit card on file for the full cost of the plan described during the registration process. The subscription will automatically renew and continue month-to-month or year-to-year (depending on the plan selected during the registration process), unless and until Customer cancels their subscription or Osano terminates this Agreement pursuant to Section 6.3 Customer will not receive a notice from Osano that Customer’s Free Trial Period is about to end or has ended.
- Customers may cancel their subscription at any time during the Free Trial Period by following the steps described in the registration process. Upon cancellation of Customer’s account, Customer will immediately lose all access to the Osano Services and Platform.
4.5 Taxes and Withholdings. Customer is responsible for paying all taxes, assessments, charges, fees, and levies that may be levied or based upon Customer’s subscription to the Services, and any interest, fines, and penalties with respect thereto, imposed by any governmental authority. If Osano has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section 4.2, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Osano with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.6 Enterprise Customers:
- Invoicing. Osano shall invoice Enterprise Customer for the Fees in the currency set forth on the applicable Authorization Form. Unless otherwise stated on the Authorization Form, all invoices shall be payable upon presentation and prior to any commencement of Services. Any disputed amounts shall not affect payment of non-disputed amounts. Enterprise Customer shall make payments to Osano via the entity and address set forth in the Authorization Form and in the manner described on the Authorization Form.
- Auto-Renewal. Enterprise Customer agrees and authorizes Osano to issue an annual recurring charge for Enterprise Customer’s utilization of the Platform and Services absent termination consistent with Section 6.
- Late Payment. If any amounts invoiced hereunder as Fees or otherwise are not received by Osano by the due date, then at Osano’s discretion, such charges may accrue late interest at the rate of 12% per year or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. In addition, upon 30 days’ written notice to Enterprise Customer provided after the due date, Osano may suspend Enterprise Customer’s access to the Services, if any, if Osano has not received the amounts invoiced hereunder at the expiration of such 30-day period.
5. Confidential Information and Security
5.1 Confidential Information. Each party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care consistent with industry standards) and will not disclose or use any Confidential Information (as defined below) of the other party for any purpose outside of the scope of this Agreement, and each party shall limit access to Confidential Information to those of its, or its Affiliates’, employees, contractors, and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the receiving party containing protections no less stringent than those herein.
In this Agreement, “Confidential Information” means all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products, or services of each party. Confidential Information includes any business information that is either marked physically or identified orally as “confidential” or “proprietary.” Confidential Information excludes any information that (a) was lawfully in the receiving party’s possession before receiving it from the disclosing party; (b) is provided in good faith to the receiving party by a third party without restriction on use or disclosure and without breaching any rights of the disclosing party; (c) is or becomes generally known or available to, or accessible by, the public through no act or omission of the receiving party; or (d) was or is independently developed by the receiving party without reference to the disclosing party’s Confidential Information. In the event that the receiving party or any representative of the receiving party becomes legally compelled (by law, rule, regulation, subpoena, or similar court process) to disclose any of the Confidential Information, the receiving party will (if permitted to do so) provide the discloser with notice of such circumstances and will limit such disclosure to the required disclosure.
5.3 Multi-Factor Authentication. Multi-Factor Authentication is a security system that requires more than one level of authentication before accounts can be accessed. It was developed to add extra security steps to the login process, to keep accounts safe and verify users before they can gain access to accounts. Users that provide their mobile phone numbers for authentication purposes agree to receive an SMS message as part of the process. Carrier message and data rates may apply.
6. Term and Termination
6.1 Term of Agreement. This Agreement shall commence on the Service Start Date and shall continue in effect until the expiration of the Plan or this Agreement has been terminated in accordance with this Article 6 (the “Term”).
6.2 Term of Subscription Plan. The term of each Plan shall start on the Service Start Date specified in the registration process and shall continue for the term specified therein. Except as expressly stated otherwise, Plans shall automatically renew for subsequent one-month or one-year renewal periods, unless a Party gives the other Party written notice of non-renewal at least 30 days prior to the end of the then-current term. Upon renewal, Osano reserves the right to increase the Fees for Services by providing Customer written notice thereof (which notice may be provided by email) at least 30 days prior to the end of the then-current term.
6.3 Termination for Cause. Either party may terminate this Agreement for cause (i) upon 30 days' written notice to the other party of a material breach if such breach remains uncured at the expiration of such period; or (ii) immediately if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. In the event that Osano terminates this Agreement for cause, no refund shall be issued.
6.4 Termination for Convenience. Osano may terminate this Agreement for convenience upon 60 days’ written notice to the Customer. In the event of Osano’s termination for convenience, Osano will issue the Customer a pro-rata refund of Fees paid for Services not rendered.
6.5 Effects of Termination. Upon termination of this Agreement or cancellation of a Plan for any reason, (i) Customer will immediately cease all use of the Services; (ii) Customer will have no further access to its Customer account provided by Osano and any data associated with Customer's account; (iii) Osano will cease sending Customer any communications provided through the GDPR Representative feature; and (iv) Customer will pay Osano all unpaid Fees owing to Osano. If Customer terminates this Agreement in accordance with Section 6.3, then without limiting any other remedies that may be available, Customer will pay any unpaid Fees covering the remainder of the term specified in the Plan after the date of termination. In no event will termination relieve Customer of its obligation to pay any amounts and Fees payable to Osano for the period prior to the date of termination and other obligations that survive termination of this Agreement.
6.6 No Refunds. In the event that Customer terminates this Agreement or cancels its Plan in accordance with section 4.3, Osano will not issue any refunds for fees already paid.
6.6 Survival. Any provision of this Agreement that, either by its terms or to give effect to its meaning, must survive, and such other provisions that expressly or by their nature are intended to survive termination shall survive the expiration or termination of this Agreement. Without limiting the foregoing, Sections 4.1, as well as Sections 3, 5, 7-11, shall survive the expiration or termination of this Agreement.
7. Service Levels
7.1 General. The Osano Services and Platform depend on IT equipment, software and services that are provided, maintained and supported by Osano. Osano will provide and maintain the Osano Services and Platform.
7.2 Basic, Business, and Business+ Customers. Osano will use its best efforts to make the Osano Services and Platform available to Customers subscribed to the Basic, Business, and Business+ Plans. Osano makes no service level or System Availability guarantees to Customers subscribing to the Basic, Business, or Business+ Plans.
7.3 Enterprise Customers. Osano shall provide the Services to Enterprise Customers with a guaranteed 99.999% System Availability during each calendar month. System Availability does not include planned downtime for maintenance and upgrades. The sole remedy for downtime for Enterprise Customers is in the form of service credits, calculated as the minutes of unplanned downtime during a calendar month (rounded to the nearest minute) divided by the number of minutes in that calendar month and multiplied by the Enterprise Customer’s monthly cost divided by the number of minutes in that calendar month. The remedies set out above are Enterprise Customer’s sole and exclusive remedy for issues related to System Availability.
8. Warranty and Disclaimers
8.1 Mutual Warranties. Each of Osano and User represents and warrants that it has the power and authority to enter into this Agreement and to perform its obligations and duties under this Agreement and that doing so is not in conflict with any other agreement.
8.2 Osano Warranties. Osano warrants that (i) subject to Section 2.2, the Services will materially perform in accordance with the applicable documentation and the functionality of the Services will not be materially decreased during the term of the applicable Plan; (ii) the Services do not knowingly contain any malicious code or viruses. For any breach of an above warranty, Customer’s exclusive remedies are those described in Section 6.3; (iii) the Services do not knowingly infringe the intellectual property of any third party.
8.3 Legal Disclaimer. Nothing on the Osano website, Platform, or Services, nor any portion thereof constitutes actual legal, regulatory, or other professional advice, opinion, or recommendation by Osano, its Affiliates of any Content provider. If legal or other professional assistance is required, Users should seek the services of an attorney or other competent professional. Users assume all responsibilities and obligations with respect to any decision, advice, conclusions, legal opinions, recommendations made or given as a result of the use of the Platform and Services, including, without limitation, any decision made or action taken by User in reliance upon Content, or incorporating or referencing the Content.
Customers who use the GDPR Representative feature are responsible for the accuracy the information they provide. Osano assumes no responsibility in the event of Customer's incomplete or inaccurate representation of the GDPR Representative contact information.
The Osano website, Platform, and Services provide general information about data privacy and selected litigation. The Osano website and Platform do not provide legal advice and Osano is not a law firm. All Content available on the Platform is for informational purposes only. Osano Analysts are not acting as lawyers or providing legal advice when responding to Authorized User questions. By providing information to Osano via the Osano website or Platform or otherwise communicating information to Osano, Users acknowledge that they are not establishing an attorney-client relationship and the information provided to Osano will not be afforded legal protection as an attorney-client communication.
8.4 General Disclaimer. SOME COUNTRIES AND JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF IMPLIED TERMS IN CONTRACTS WITH CONSUMERS AND AS A RESULT THE CONTENTS OF THIS SECTION 7.3 MAY NOT APPLY TO CUSTOMER. EXCEPT AS EXPRESSLY PROVIDED HEREIN, TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW, OSANO EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OSANO SPECIFICALLY DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES OF DESIGN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUALITY, AND NON-INFRINGEMENT, THAT THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE, ACCURATE, COMPLETE, OR ERROR-FREE. IN ADDITION, OSANO DOES NOT WARRANT ANY CONNECTION TO OR TRANSMISSION FROM THE INTERNET. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OSANO OR ELSEWHERE NOR ANY COURSE OF DEALING WILL CREATE ANY WARRANTY OR CONDITION NOT EXPRESSLY STATED IN THIS AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY PROVIDED HEREIN.
OSANO DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE CONTENT ON THE WEBSITE OR PLATFORM IN TERMS OF THEIR TIMELINESS, CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. WHILE OSANO MAKES REASONABLE EFFORTS TO PROVIDE ACCURATE AND TIMELY INFORMATION, USERS SHOULD NOT ASSUME THAT THE INFORMATION PROVIDED IS ALWAYS UP TO DATE OR THAT THE CONTENT CONTAINS ALL RELEVANT INFORMATION. WE UNDERTAKE NO OBLIGATION TO VERIFY OR MAINTAIN THE CURRENCY OF SUCH INFORMATION.
OSANO DISCLAIMS ANY AND ALL RESPONSIBILITY OR LIABILITY IN RELATION TO THE CONTENT MADE AVAILABLE THROUGH THE SERVICES, INCLUDING CUSTOMER INFORMATION, AND ANY CONTENT OR SERVICES PROVIDED BY THIRD PARTIES. OSANO DOES NOT CONTROL OR VET CUSTOMER INFORMATION AND IS NOT RESPONSIBLE FOR WHAT CUSTOMERS POST, TRANSMIT, OR SHARE ON OR THROUGH THE SERVICES. OSANO EXPRESSLY DENIES ANY RESPONSIBILITY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR THE INFORMATION CONTAINED THEREIN AS WELL AS ACCOUNT AND CUSTOMER INFORMATION.
User agrees to defend, indemnify, and hold harmless Osano, its Affiliates, directors, officers, employees, and agents from and against all claims, losses, damages, penalties, liability, and costs, including reasonable attorneys’ fees, of any kind or nature that are in connection or arising out of a third party claim (i) alleging that User’s use of the website or Services infringes or violates the intellectual property rights, privacy rights, or other rights of a third party or violates any applicable law; (ii) relating to, or arising from, Customer Information or User’s breach of Section 2.3 or Section 8.1; or (iii) relating to User’s violation of this Agreement.
10. Limitation of Liability
CUSTOMER’S EXCLUSIVE REMEDIES FOR ANY INTERRUPTION OR CESSATION OF ACCESS OR TRANSMISSION TO OR FROM THE SERVICES ARE SET FORTH IN THE APPLICABLE SERVICE LEVEL AGREEMENT. EXCEPT AS EXPRESSLY PROVIDED HEREIN, IN NO EVENT SHALL OSANO'S AGGREGATE LIABILITY TO CUSTOMER FOR ALL CLAIMS OF ANY KIND, INCLUDING ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER BY STATUTE, CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE FEES PAID BY CUSTOMER FOR THE SERVICES SUBJECT TO THE CLAIM DURING THE ONE (1) YEAR PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CAUSE OF ACTION AROSE, AS PRO-RATED BASED UPON THE FEES FOR THE THEN CURRENT TERM.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL OSANO, ITS DIRECTORS, EMPLOYEES, AGENTS, OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, OR DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICES OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL OSANO BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES OR CUSTOMER’S ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
THE PARTIES ACKNOWLEDGE AND AGREE THAT THE ESSENTIAL PURPOSE OF THIS SECTION 9 IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES AND LIMIT THEIR POTENTIAL LIABILITY GIVEN THE FEES CHARGED UNDER THIS AGREEMENT, WHICH WOULD HAVE BEEN SUBSTANTIALLY HIGHER IF OSANO WERE TO ASSUME ANY FURTHER LIABILITY OTHER THAN AS SET FORTH HEREIN. THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THESE TERMS. NOTHING IN THIS AGREEMENT IS INTENDED TO EXCLUDE OR RESTRICT OR SHALL BE CONSTRUED AS EXCLUDING
OR RESTRICTING THE LIABILITY OF OSANO FOR (I) DEATH OR PERSONAL INJURY CAUSED BY THE NEGLIGENCE OSANO, ITS EMPLOYEES, OR ITS AGENTS; (II) WILLFUL MISCONDUCT, FRAUD, OR GROSS NEGLIGENCE OF OSANO OR ITS EMPLOYEES; OR (III) ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY APPLICABLE LAW.
CUSTOMER AGREES THAT CUSTOMER WILL ONLY BE ABLE TO PURSUE CLAIMS AGAINST OSANO ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND CUSTOMER WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. CUSTOMER FURTHER AGREES THAT ANY CAUSE OF ACTION ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR CUSTOMER’S USE OF OSANO’S SERVICES MUST COMMENCE WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
11.1 Assignment. Neither User nor Osano may assign or otherwise transfer any of their rights or obligations hereunder, (except by merger, sale of assets, change of control, operation of law or otherwise) without the prior written consent of the other party (not to be unreasonably withheld), and any attempted assignment without such consent will be void. Notwithstanding the foregoing, Osano may assign this Agreement in its entirety, without consent of User, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its shares or assets.
11.2 Relationship of the Parties. 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.
11.3 Customer Logo. Customer agrees that Osano may use Customer’s name and logo and may disclose that Customer is a customer of the Services in Osano advertising, press, promotion, and similar public disclosures, including at trade shows and similar events. In addition to the foregoing, Customer hereby grants Osano a non-exclusive license during the Term to list Customer’s name and display Customer’s logo as an Osano customer on Osano’s website.
11.4 Force Majeure. 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 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; and 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.
11.5 Counterparts and Interpretation. This Agreement may be executed in any number of counterparts, all of which taken together shall constitute one single agreement between the parties. Headings are for convenience only and are not to be considered in construing or interpreting this Agreement. This Agreement shall be construed and interpreted fairly, in accordance with the plain meaning of its terms, and there shall be no presumption or interference against the party drafting this Agreement in construing or interpreting the provisions hereof.
11.6 Amendment. No amendment, supplement, restatement, or termination of any provision of this Agreement shall be valid unless it is in writing and signed by each party to this Agreement at the time of the amendment, supplement, restatement, or termination.
11.7 Severability. Each provision of this Agreement is severable. If any provision of this Agreement is or becomes illegal, invalid, or unenforceable in any jurisdiction, the illegality, invalidity, or unenforceability of that provision will not affect the legality, validity, or enforceability of the remaining provisions of this Agreement or of that provision in any other jurisdiction.
11.8 Notices. For purposes of service messages and notices about the Services, Osano may place a banner notice across the Services or website to alert Users. Alternatively, notice may consist of an email from Osano to an email address associated with Customer’s account, even if Osano has other contact information. For communication about Customer’s account and services associated with Osano, Osano may contact Customer or its Authorized Users through its Customer account or through other means including email, mobile number, telephone, or delivery services such as the postal service. Customer acknowledges and agrees that Osano shall have no liability associated with or arising from Customer’s failure to maintain accurate contact or other information, including, but not limited to, Customer’s failure to receive critical information about the Services. Notices to Osano must be delivered by email to firstname.lastname@example.org with a duplicate copy sent via registered mail to the following address: Osano, Inc., 3800 North Lamar Blvd., Suite 200, Austin, TX 78756; Attention: Legal. This contact information provided may be updated by giving notice in accordance with this Section 10.8. Osano is not responsible for providing notice of maintenance or other service announcements to Customers subscribing to the Basic Plan.
11.9 Waivers. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all parties to this Agreement, except that any provision that does not give rights or benefits to particular parties may be waived in writing, signed only by those parties who have rights under, or hold the benefit of, the provision being waived if those parties promptly send a copy of the executed waiver to all other parties. No failure to exercise, and no delay in exercising, any right or remedy under this Agreement will be deemed to be a waiver of that right or remedy. No waiver of any breach of any provision of this Agreement will be deemed to be a waiver of any subsequent breach of that provision or of any similar provision.
11.10 Governing Law, Jurisdiction and Venue. This Agreement and each of the documents contemplated by or delivered under or in connection with this Agreement are governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the State of Texas. Each of the parties irrevocably consents to the exclusive personal jurisdiction of the federal and state courts located in Travis County, Texas, as applicable, for any matter arising out of or relating to this Agreement, except that in actions seeking to enforce any order or any judgment of such federal or state courts located in Travis County, Texas, such personal jurisdiction shall be nonexclusive.
11.11 Binding Arbitration. It is the intention of the parties to use their reasonable best efforts to informally resolve, where possible, any dispute, claim, demand or controversy arising out of the performance of this Agreement by mutual negotiation and cooperation, a period of which shall be no less than five (5) business days from first notice of any such dispute. In the event the parties are unable to informally resolve any such dispute, including relating to this Agreement, the parties agree to arbitrate any controversy, claim or dispute between them arising out of or in any way related to this Agreement and any disputes upon termination of the relationship, including claims for violation of any local, state or federal law, statute, regulation or ordinance or common law. The arbitration will be conducted in Travis County, Texas, by a single neutral arbitrator and in accordance with the American Arbitration Association’s (“AAA”) then current Employment Arbitration Rules’ expedited procedures for resolution. Notwithstanding the provision in the preceding or subsequent paragraph with respect to applicable substantive law, the arbitration conducted pursuant to the terms of this Agreement shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). The arbitrator shall have the power to enter any award that could be entered by a judge of the trial court of the State of Texas, and only such power, and shall follow the law. In the event the arbitrator does not follow the law, the arbitrator will have exceeded the scope of his or her authority and the parties may, at their option, file a motion to vacate the award in court. The parties agree to abide by and perform any award rendered by the arbitrator. Judgment on the award may be entered in any court having jurisdiction thereof. The prevailing party shall be entitled to costs and attorneys’ fees.