Provision of Service. This Agreement described the terms and conditions upon which OpenBOM will provide the Service, a software as a services (“SaaS”) application, to you. Subject to your acceptance of this agreement and subsequent payment of the applicable fees, if any, and your compliance with this Agreement, OpenBOM will provide the Service to you as described herein. In order to use the Service, you may be issued an individual username and password. You must safeguard your username and password and keep them confidential, and you will be responsible for any use of the Service by means of your username and password, whether by you or by any other party.
Software License. Subject to the terms of this Agreement, OpenBOM grants you a non-exclusive, non-transferable license to use OpenBOM Service and any upgrades and updates to such Service made available by OpenBOM from time to time (collectively, the “Service”), solely for your own internal use and only during the Term (as defined herein). OpenBOM also grants you a non-exclusive, non-transferable license to use accompanying software documentation (“Documentation”), as available, solely in connection with your use of the Service. You acquire no right, title, or interest in or to the Service or Documentation except the limited licenses described in this Section 2. OpenBOM reserves the right to change, modify and append the price of the Service at any time. The OpenBOM website (www.openbom.com) will reflect the latest price of the Service.
Your Systems. The Service is accessed using your IT systems (the “Customer Systems”). By entering into this Agreement, you agree to provide and allow openBoM access to your Customer Systems via the Internet for the purposes of providing the Service to you, and you represent and warrant that you have the right to grant this access to OpenBOM. You are solely responsible for the set-up, maintenance, and security of the Customer Systems, and you acknowledge that frequent, regular software updates for Internet browsers, antivirus, operating systems, and other communication software are essential to the security of the Customer Systems and are your sole responsibility.
Browser plugins and extensions. In order to use certain features of the Service, it may necessary for you to install browser plugins or extensions required on the Customer Systems, that OpenBOM makes available. If you fail to install these plugins you understand some features of the Service may not be available to you.
Third-Party Sites and Products. “Third-Party Sites and Products" means embedded and non-embedded access to the Service via products and professional services that are provided by third parties which interoperate with or are used in connection with the Service. Third-Party Sites and Products are not under our control. Third-Party Sites and Products are provided to you only as a convenience, and the availability of any Third-Party Site or Product does not mean we support or warrant the Third-Party Site and Product. We disclaim any representation or warranty with respect to any Third-Party Site or Product, and you agree that we will have no liability to you whatsoever for such Third-Party Sites and Products.
Your Data; OpenBOM Confidentiality Obligation. In providing the Service to you, OpenBOM will be granted access to data stored on Customer Systems (“Customer Data”) consistent with OpenBOM’s Privacy Statement. You represent and warrant that, to the extent required, you have obtained all necessary rights and licenses to the data stored on Customer Systems for use as contemplated by this Section 6 and that openBoM’s use of the Customer Data as set forth herein will not violate any intellectual property rights or privacy rights of any third party. You acknowledge that, in relation to the EU Data Protection Directive (also known as Directive 95/46/EC), OpenBOM acts as a processor of data (“data processor”). OpenBOM will keep the Customer Data confidential, stored exclusively on the OpenBOM Cloud Domain, use it only to deliver the Service to you, and not disclose it to any third party except openBoM employees and contractors who have entered into binding agreements with OpenBOM that contain non-disclosure obligations equivalent to those set forth in this Agreement. OpenBOM may anonymously aggregate non-identifiable Customer Data with non-identifiable anonymous data from other OpenBOM customers and third parties to create anonymously aggregated meta-data that does not identify any individual customer or the metrics or information pertaining to any individual customer or its domain (“Aggregated Meta-Data”). You agree that OpenBOM will own all right, title and interest in and to Aggregated Meta-Data, and has the sole, exclusive and irrevocable right to maintain, store, use and disclose Aggregated Meta-Data.
Feedback. Upon request by OpenBOM, you will provide OpenBOM with reasonable information about your use and evaluation of the Service, including, without limitation, any errors, logs, usage statistics or problems in the Service and any information reasonably necessary for OpenBOM to evaluate such errors or problems, test results and performance data, information relating to the compliance of the Service with documentation, specifications or functionality and comparison with other software or products (collectively, “Evaluation Data”). Without limiting the foregoing, you irrevocably consent to OpenBOM’s collection of Evaluation Data and any other information and data relating to your use of the Service, by various means (including without limitation through the Service), without any further notice to, or consent of, you. You also hereby assign to OpenBOM all right, title and interest in and to the Evaluation Data, and agree that OpenBOM will have exclusive use of all Evaluation Data.
Restrictions. You may NOT: (i) make any copies of all or any part of the software included in the Service (the “Software”) or otherwise reproduce the Software except for archival copies as permitted by the United States Copyright Act; (ii) copy or modify all or any part of the Documentation or distribute it to third parties; (iii) use the Software, Service or Documentation in connection with a service-bureau, time sharing or fee-for-service arrangement with third parties, or otherwise provide the benefit of the Software, Service or Documentation to any third party; (iv) decompile, decrypt, disassemble, reverse engineer or otherwise discover the source code for the Software, or attempt to disable or defeat any locking mechanism within the Software; (v) modify the Software or Documentation, incorporate the Software or Documentation in whole or in part in any other product or create derivative works based on all or any part of the Software or Documentation; (vi) remove any copyright, trademark, proprietary rights, disclaimer or warning notice included on or embedded in any part of the Software or Documentation; or (vii) export the Software or Documentation or use the Software or Documentation in any country other than that in which it was obtained. You acknowledge that the Software is subject to United States export laws and regulations and you shall comply with all such laws and regulations in your use of the Software.
Ownership, Non-Disclosure. OpenBOM owns and will retain all right, title and interest, including without limitation all copyright, trademark, trade secret, patent and other proprietary rights, in and to the Service, Software, Documentation, Evaluation Data, Aggregated Meta-Data and other Derivative Data (the “Proprietary Materials”). You shall keep confidential and not disclose, sell, lease, transfer, sublicense, dispose of, or otherwise make available the Proprietary Materials or any portion thereof, in source or object code, to any third party other than your employees who need access to the Proprietary Materials in order to use the Service and exercise your license rights granted herein. You agree that dissemination of the Proprietary Materials in breach of this Agreement would cause irreparable harm to OpenBOM for which monetary compensation alone would be inadequate, and OpenBOM is entitled to seek injunctive relief prohibiting any such dissemination, in addition to monetary damages and all other remedies available at law or in equity. This Agreement is NOT a sale of the Proprietary Materials or any copy of them. You obtain only such rights in the Proprietary Materials, if any, as are expressly provided in this Agreement.
Derivative Data Ownership. OpenBOM shall retain all right, title and interest, including all intellectual property rights, in and to the Service including, but not limited to any and all Aggregated Meta-Data and any and all other data aggregated, generated, or otherwise created by the Service, regardless of source, destination, and storage medium (“Derivative Data”). OpenBOM shall remain the exclusive, proprietary owner of all Derivative Data in all formats and form generated by the Service regardless of how or where the Service is made available, including, but not limited to, access of the Service via Third Party Sites and Products. OpenBOM ownership of Derivative Data extends to any source-destination or storage medium owned, controlled, or managed by any Third Party Site or Product.
Term; Enforcement of Terms; Termination; Cancellation. This Agreement takes effect when you first subscribe to the Service or otherwise begin using the Service, and continues until terminated as set forth in this Agreement (the “Term”). The Term of the Service shall reflect the price and package offer of the Service as presented on the OpenBOM website (www.openbom.com) or Third Party Sites and Products from time to time. If you fail to fulfill any of your obligations under this Agreement, OpenBOM and/or its licensors may pursue all available legal remedies to enforce this Agreement, and OpenBOM may, at any time after your default of this Agreement, terminate this Agreement and all licenses and rights granted to you hereunder. You agree that openBoM’s licensors referenced in the Software are third-party beneficiaries of this Agreement, and may enforce this Agreement as it relates to their intellectual property. This License will terminate immediately without notice from openBoM if you fail to comply with any of its provisions. Upon termination you will not be granted further access to the Service. Termination of the Service shall not relieve you of any payment obligations that may have arisen prior to such termination. Prior to the end of a subscription term, you may cancel the Service upon five (5) days’ prior written notice for monthly subscriptions and thirty (30) days’ prior written notice for annual subscriptions to OpenBOM sent to support@openbom.com. If you cancel the Service and/or your recurring payment, your account will remain active until its next renewal date. If you cancel your Service before the end of the term for which you paid, your cancellation will take effect immediately if requested in writing (at support@openbom.com) to OpenBOM as per the termination provisions herein. In either case (termination or cancellation), you will not be given any refund.
Renewal of Service. Upon the expiration of the initial Service subscription Term, the Service shall automatically renew for an additional subscription Term of equal duration unless Customer terminates the Service as set forth in Section 11. Unless otherwise set forth herein, each subscription Term that is renewed under these Terms, shall renew based upon openBoM’s then-current list pricing at the time of such renewal.
U. S. Government Users. Pursuant to the policy stated at 48 CFR 227.7202-1, U.S. Government users acknowledge that (i) the Software is commercial computer software, (ii) this Agreement embodies the licenses customarily used by OpenBOM for licenses in Software granted to the public, and (iii) the licenses set forth herein shall apply to all possession, use and duplication of the Software by the Government, except to the extent which such licenses are inconsistent with Federal procurement law. Contractor/manufacturer is Newman Cloud, Inc. of 105 Redwood Drive, Newton, MA 02459.
Support for customers. OpenBOM will provide you with reasonable assistance with the Service through its email help address at support@openBoM.com or through any other means OpenBOM makes available. Except for any such assistance and at the discretion of OpenBOM, the Service will not include any implementation, helpdesk, support or maintenance services with respect to the Software, or to any bug fixes, error corrections, updates, upgrades or new versions of the Software (collectively, “Support Services”). The assistance provided by openBoM is not bound to any SLAs or SLOs.
Limited Warranty and Disclaimer. OpenBOM warrants that, during the period that you have paid applicable fees and remain in compliance with this Agreement, the Service will operate in substantial conformance with the functionality current at the time of access. openBoM’s sole responsibility and your sole remedy for any failure of the Service to conform to this warranty shall be openBoM’s commercially reasonable efforts to remedy any error in the Service so as to conform to the warranty within a reasonable time after you notify openBoM of the error, or, in the event that openBoM is unable to remedy the error, OpenBOM shall refund to you the fees paid by you, if any, with respect to the period during which the Service failed to operate in accordance with this limited warranty. Neither openBoM nor its licensors make any warranties with respect to any Third Party Site or Product or any third party software included in the Software. EXCEPT FOR THE FOREGOING WARRANTY, openBoM PROVIDES THE SERVICE, THE SOFTWARE AND THE DOCUMENTATION TO YOU “AS IS” AND WITHOUT WARRANTY OF ANY KIND, EXPRESS, STATUTORY, IMPLIED OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ANY openBoM EMPLOYEE, REPRESENTATIVE OR DISTRIBUTOR SHALL CREATE A WARRANTY FOR THE SERVICE OR SOFTWARE, AND YOU MAY NOT RELY ON ANY SUCH INFORMATION OR ADVICE. openBoM’s LICENSORS EXPLICITLY DISCLAIM ANY AND ALL WARRANTIES WITH RESPECT TO THE SOFTWARE. IN NO EVENT SHALL openBoM BE LIABLE FOR ANY BREACH OF THIS AGREEMENT TO THE EXTENT SUCH BREACH IS OUTSIDE ITS REASONABLE CONTROL.
Limitation of Liability. IN NO EVENT SHALL openBoM OR ITS LICENSORS OR ANY OF THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR OTHER AFFILIATES BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION THE COST OF COVER, DAMAGES ARISING FROM LOSS OF DATA, USE, PROFITS OR GOODWILL), WHETHER OR NOT openBoM HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY ARISING OUT OF THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. OpenBOM’s MAXIMUM AGGREGATE LIABILITY ARISING OUT OF THIS AGREEMENT AND/OR YOUR USE OR POSSESSION OF THE SERVICE, THE SOFTWARE OR THE DOCUMENTATION, INCLUDING WITHOUT LIMITATION ANY AND ALL CLAIMS COMBINED, WILL NOT EXCEED THE LESSER OF (i) $10,000 OR (II) THE AMOUNT OF THE FEES YOU HAVE PAID FOR THE SERVICE PROVIDED UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS PRIOR TO ANY SUCH CLAIM. THE CONSIDERATION TO BE RECEIVED BY openBoM HEREUNDER DOES NOT INCLUDE COMPENSATION FOR ASSUMING OR INSURING ANY OF THE RISKS AND LIABILITIES DISCLAIMED BY OpenBOM. THE LIMITATIONS AND DISCLAIMERS PROVIDED IN THIS SECTION ARE INTENDED TO PREVAIL OVER ANY PROVISION HEREIN TO THE CONTRARY. FURTHERMORE, OpenBOM DISCLAIMS ALL LIABILITY WITH RESPECT TO THIRD-PARTY SITES AND PRODUCTS THAT YOU USE. OUR LICENSORS SHALL HAVE NO LIABILITY OF ANY KIND UNDER THIS AGREEMENT. YOU UNDERSTAND AND AGREE THAT ABSENT YOUR AGREEMENT TO THIS LIMITATION OF LIABILITY, WE WOULD NOT PROVIDE THE SUBSCRIPTION SERVICE TO YOU.
Governing Law. This Agreement shall be governed by and interpreted in accordance with the laws of the Commonwealth of Massachusetts, excluding its choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. You and OpenBOM agree that the federal and state courts located in Suffolk County, Massachusetts, shall have exclusive jurisdiction over any disputes arising in connection with the Service or this Agreement, and each party hereby submits to jurisdiction and venue of such courts.
Complete Agreement. This Agreement constitutes the entire agreement between you and OpenBOM in relation to the Service, and supersedes all proposals, oral or written, all negotiations, conversations, discussions and all past course of dealing between you and OpenBOM relating to the Service and Software, and may only be modified in writing signed by you and OpenBOM. You may not assign this Agreement or any right or license hereunder without the prior written consent of openBoM. In the event any term of this Agreement is held by a court of competent jurisdiction not to be enforceable, the remaining terms shall survive and be enforced to the maximum extent permissible by law. No waiver of any right or obligation contained herein shall be given except in writing signed by the party against whom the waiver is sought to be enforced.