Last updated on May 3, 2023.
This Opsera Terms of Service (“Agreement”) is made between Opsera, Inc., a Delaware corporation having its principal place of business at 2209 El Camino Real Palo Alto, CA 94306 (“Opsera”), and Customer (defined below) and govern the Customer’s use of the Opsera Assets (each as defined below).
“Customer” means a person or entity that accepts and agrees to the terms of this Agreement as of the earlier date (“Start Date”) where such person or entity either clicks a box indicating acceptance of this Agreement or uses an Opsera Asset. Opsera reserves the right to modify or update this Agreement in its sole discretion, the effective date of such updates and/or modifications will be the earlier of: (i) 30 days from the date of such update or modification; or (ii) Customer’s continued use of any Opsera Asset.
IF YOU DO NOT ACCEPT THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE OPSERA ASSETS. THE OPSERA ASSETS ARE INTENDED FOR THE CUSTOMER AND ITS AUTHORIZED USERS ONLY AND ARE NOT FOR USE BY CHILDREN UNDER 13 YEARS OF AGE. IF AN INDIVIDUAL IS ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, SUCH PERSON REPRESENTS AND WARRANTS THAT IT HAS THE LEGAL AUTHORITY TO BIND SUCH LEGAL ENTITY TO THIS AGREEMENT AND THIS AGREEMENT APPLIES TO SUCH ENTITY WHICH IS DEEMED THE CUSTOMER.
If Customer and Opsera have executed a written agreement governing Customer’s access to and use of the Opsera Assets as a Opsera customer, then the terms of such signed agreement will govern and will supersede this Agreement.
1. Definitions.
“Affiliate(s)” means any entity that now or hereafter Controls, is Controlled by, or is under common Control with, a specified entity. Such entity shall be deemed to be an Affiliate only so long as such Control exists.
"Authorized User" means one individual (no concurrent usage with other users is permitted), whether for themself or on behalf of their entity, that are authorized by Customer to use the Service.
"Beta Features" means any Opsera Asset features, functionality or services which Opsera may make available to Customer to try at no additional cost, and which is designated as beta, trial, non-production or another similar designation.
“Control” means: (i) direct or indirect ownership or control (now or hereafter) of more than fifty percent (50%) of the outstanding shares or securities (representing the right to vote for the election of directors or other managing authority); or (ii) in the case of a company or other entity which does not have outstanding shares or securities, as may be the case in a partnership, joint venture or unincorporated association, direct or indirect ownership or control of more than fifty percent (50%) of whose ownership interest representing the right to make the decisions for such corporation, company or other entity.
“Documentation” means the manuals, specifications, and other materials describing the functionality, features, and operating characteristics, and use of the Software and/or Service, as may be provided or made available by Opsera to Customer, whether in written or electronic form, including all modifications, updates, upgrades thereto and derivative works thereof.
"Malicious Code" means any harmful, malicious, or hidden code, programs, procedures, routines, or mechanisms that would: (i) cause the Service to cease functioning; (ii) damage or corrupt any Opsera owned or controlled data, programs, equipment, systems, servers or communications; or (iii) interfere with the operations of the Service (e.g., Trojan horses, viruses, worms, time bombs, time locks, devices, traps, access codes, or drop dead or trap door devices).
"Order Form" means: (i) each order document executed in writing between the parties for the purchase of a subscription to the Service; and/or (ii) the purchase of a subscription to the Service by means of the Service dashboard.
“Opsera Assets” means the Service and Documentation.
“Pipeline(s)” means a workflow tool for code deployment.
“Platform(s)” means an end-to-end solution for a particular use case or project that may consists of a certain number of Toolchains, Pipelines and/or Users.
"Prohibited Content" means content that: (i) is illegal under any applicable law; (ii) violates any third-party rights including, but not limited to, privacy, intellectual property rights and trade secrets; (iii) contains false, misleading, or deceptive statements, depictions, or practices; (iv) contains Malicious Code; or (v) is otherwise objectionable to Opsera in its sole, but reasonable, discretion.
“Repositories” means a revision control system for source code, in order to control the access, creation, maintenance, modification and use of source code (e.g., GitLab, GitHub, BitBucket).
"Service" means Opsera's proprietary solution offered as a software-as-a-service for product and IT engineering teams’ orchestration which includes the Opsera Assets.
"Software" means software that Opsera develops and maintains in order to provide the Service, including the Beta Features, and all modifications, enhancements, updates, upgrades, patches, workarounds, and fixes thereto, and any derivative works thereof.
"Subscription Period" is the length of the subscription specified in the Order Form.
"Support" means the support terms for the Service set forth in Section 3(b) below.
“Taxes” means any and all customs, duties, sales, use, value added, withholding, or other taxes, federal, state or otherwise, however designated, which are levied or imposed because of the transactions contemplated by this Agreement.
“Toolchain(s)” means a collection of tools that are offered via the Opsera Toolchain catalog.
“Unit(s)” means a number of Authorized Users, Pipelines, Platforms, Repositories and/or Toolchains specified in an Order Form.
“Usage Data” means data collected by Opsera pertaining to Customer’s interaction with the Service which includes, but is not limited to, performance of the Service, metrics and other measures of Customer’s use of the Service and its operation. Usage Data are not Customer Data and do not consist of Customer Personal Data (as defined in the DPA).
2. Grant of License to the Service; Restrictions.
• Grant of License to the Service. Subject to the terms of this Agreement and the applicable Order Form, Opsera grants Customer a limited, non-exclusive, non-sublicensable, non-transferable (except as otherwise provided herein) license during the Subscription Period, solely for Customer's internal business operations up to the number of Units specified on the Order Form, to use the Opsera Assets solely in accordance with the Documentation, this Agreement and the applicable Order Form. Customer may permit its Affiliates’ employees and authorized contractors to serve as Authorized Users, subject to the terms of this Agreement and the applicable Order Forms, and provided any use of the Service by such individuals will be for the sole benefit of Customer.
• Restrictions. Customer will not (and will not authorize or permit any third party to): (i) allow anyone other than Authorized Users to access and use the Opsera Assets; (ii) share any Opsera issued access credentials with any third party; (iii) reverse engineer, decompile, disassemble, or otherwise attempt to discern the source code or interface protocols of the Service; (iv) modify, adapt, or translate the Service or remove or modify any proprietary markings or restrictive legends placed on or within the Opsera Assets; (v) make copies, store, or archive, any portion of the Opsera Assets without the prior written permission of Opsera; (vi) use the Opsera Assets in violation of any applicable law; (vii) introduce, any Malicious Code into the Service; or (viii) exploit the Service in any unauthorized manner including by circumventing any process Opsera has put in place to safeguard the Service or by using flood pings, denial-of-service attacks, or by deploying spiders, web-bots, screen-scrapers, or web crawlers, that may damage or adversely affect server or network capacity or Service infrastructure (together, (i) through (viii) the "Restrictions"). The foregoing Restrictions will be inapplicable to the extent prohibited by applicable law.
• Trial Period. Subject to the terms of the Agreement and Order Form, including payment of all Trial Period fees (if any), commencing on the Effective Date and for the period set forth on the Order Form, Customer will have the right to use the Opsera Assets for evaluation purposes ("Trial Period"). Prior to the end of the Trial Period, Customer may terminate this Agreement without further obligation upon written notice to Opsera ("Trial Termination Notice"). If Opsera does not receive a Trial Termination Notice prior to the end of the Trial Period, the Subscription Period commences upon the expiration of the Trial Period, and Opsera will invoice Customer in accordance with Section 6.
• Beta Features. Beta Features made available by Opsera are provided to Customer for testing purposes only. Opsera makes no commitments to provide Beta Features in any future versions of the Opsera Assets. Customer is not obligated to use Beta Features. Opsera may immediately and without notice remove Beta Features for any reason without liability to Customer. Notwithstanding anything to the contrary in this Agreement, Opsera does not provide Support for Beta Features. For clarity, all Beta Features are provided "AS IS" without warranty of any kind.
• Third-Party Applications. The Service may integrate with third party products, services, tools or applications that are not owned or controlled by Opsera ("Third-Party Application(s)"). Opsera do not license or endorse any Third-Party Applications. This Agreement does not apply to such Third-Party Applications including Customer’s use thereof. OPSERA HAS NO LIABILITY OR OBLIGATION OF ANY KIND RELATED TO ANY THIRD-PARTY APPLICATIONS USED BY CUSTOMER.
• Marketing Logo Rights. Customer grants Opsera the right to use Customer's name and logo on Opsera's website for the sole purpose of identifying Customer as a customer.
3. Opsera Obligations.
• Service. Opsera will provide the Service in conformance with this Agreement, the Order Form(s) and applicable Documentation. Opsera will be responsible for hosting the Service as necessary for the subscription to the Service specified in the Order Form.
• Support. Unless stated otherwise in the applicable Order Form, if Customer experiences any errors, bugs, or other issues in its use of the Service, Opsera will use commercially reasonable efforts to respond as soon as possible (“Support”) in order to resolve the issue or provide a suitable workaround. The fee for Standard Support is included in the cost of the subscription set forth on the Order Form.
• Service Changes. Customer acknowledges that the Service is an on-line, subscription-based service, and that in order to provide improved experience, Opsera may make changes to the Service provided Opsera will not materially decrease the overall functionality of the Service.
4. Customer Obligations.
• Internet Connections. Customer will be responsible for obtaining Internet connections necessary for Customer to access the Opsera Assets.
• Export. The Opsera Assets are subject to export control laws and regulations. Customer may not access or use the Opsera Assets or any underlying information or technology except in full compliance with all applicable United States export control laws. Neither the Opsera Assets nor any underlying information or technology may be accessed or used: (i) by any individual or entity in any country to which the United States has embargoed goods; or (ii) by anyone on the U.S. Treasury Department’s list of specially designated nationals or the U.S. Commerce Department’s list of prohibited countries or debarred or denied persons or entities.
5. Data License & Protections.
• Data License. In connection with its use of the Service, Customer (including its Authorized Users) may transfer Customer Data to Opsera. Opsera uses Customer Data to provide the Service and to create and develop Usage Data. Customer grants Opsera a limited license during each Subscription Period to use Customer Data as provided for in this Section 5(a) and in accordance with this Agreement and the DPA.
• Usage Data. While Customer uses the Service, Opsera will generate Usage Data. Opsera will use Usage Data to improve and develop the Service.
• DPA. Opsera will process all Customer Data for the purposes set forth in this Agreement and in accordance with the DPA.
6. Fees
• Fees. Customer will pay all fees set forth in the applicable Order Form. Unless otherwise provided for in an Order Form: (i) all amounts are due and payable to Opsera within thirty (30) days from the date of the Order Form; and (ii) all payments are non-cancellable and non-refundable.
• Taxes. Customer will pay all applicable Taxes excluding only those based on Opsera’s net income. If Customer is compelled to make a deduction or set-off for any such Taxes, Customer will pay Opsera such additional amounts as necessary to ensure receipt by Opsera of the full amount Opsera would have received but for the deduction. Any applicable direct pay permits or valid Tax-exempt certificates must be provided to Opsera prior to the execution of this Agreement. If Opsera is required to collect and remit Taxes on Customer’s behalf, Opsera will invoice Customer for such Taxes, and Customer will pay Opsera for such Taxes in accordance with Section 6(a).
• Late Payments. In the event that Opsera does not receive any invoiced amount by the due date as set forth in Section 6(a), without limiting its rights and remedies, Opsera may: (i) charge interest on the outstanding balance (at a rate not to exceed the lesser of one and one half percent (1.5%) per month or the maximum rate permitted by law); (ii) condition future Service renewals and additional Order Forms on payment terms shorter than those specified in Section 6(a); and/or (iii) suspend access to and terminate for failure to pay (if applicable) the Service pursuant to Section 7(b).
7. Term & Termination.
• Term. The “Term” of the Agreement commences on the Effective Date and will continue in effect thereafter so long as there is an active Subscription Period under and Order Form, or until terminated earlier in accordance with Section 7(b). For clarity, each Subscription Period will be set forth in the applicable Order Form.
• Suspension Rights & Termination. Opsera may suspend Customer’s access to, or use of, the Service if: (i) any amount due to Opsera under any invoice is past due and such amount is not paid within 10 days of written notice from Opsera; and (ii) any use of the Service by Customer or Authorized Users that in Opsera's reasonable judgment threatens the security, integrity or availability of the Service. Opsera will: (x) provide Customer with written notice and an opportunity to remedy such violation or threat prior to any such suspension; (y) where practicable limit the suspension based on the circumstances leading to the suspension; and (z) remove the suspension as quickly as reasonably practicable after the circumstances leading to the suspension have been resolved.
• Termination. Either party may terminate this Agreement and/or any Order Form: (i) upon thirty (30) days' notice to the other party if the other party materially breaches this Agreement and such breach remains uncured at the expiration of such thirty (30) day period; or (ii) immediately, if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, liquidation, or assignment for the benefit of creditors.
• Effect of Termination. If Customer terminates this Agreement in accordance with Section 7(c)(i), Opsera will reimburse Customer on a pro-rata basis for any pre-paid fees allocable to the remaining Subscription Period as of the date of such termination. Upon termination or expiration of this Agreement for any reason, Opsera will, upon written request and within 30 days of such request, delete all Customer Data processed on behalf of Customer during the Subscription Period as specified in the DPA.
• Survival. The following provisions will survive any expiration or termination of the Agreement: Sections 8 (Confidentiality), 9 (Ownership), 11 (Indemnification), 12 (Limitation on Liability), and 15 (Miscellaneous, as applicable).
8. Confidentiality.
• Each party that receives ("Receiving Party") Confidential Information of the other party ("Disclosing Party") will protect and preserve such Confidential Information as confidential, using no less care than that with which it protects and preserves its own confidential and proprietary information (but in no event less than a reasonable degree of care), and will not use or disclose the Confidential Information for any purpose except to perform its obligations and exercise its rights under this Agreement and applicable Order Forms.
• Receiving Party may disclose, distribute, or disseminate Disclosing Party's Confidential Information to any of its officers, directors, members, managers, partners, employees, including to the same with respect to its Affiliates, contractors, or agents (its "Representatives"), provided Receiving Party reasonably believes that its Representatives have a need to know and such Representatives are bound by confidentiality obligations at least as restrictive as those contained herein. The Receiving Party will at all times remain responsible for any violations of this Agreement by any of its Representatives.
• A Receiving Party will not violate its confidentiality obligations if it discloses Disclosing Party's Confidential Information if required by applicable laws, including by court subpoena or similar instrument so long as the Receiving Party provides the Disclosing Party with written notice of the required disclosure so as to allow the Disclosing Party to contest or seek to limit the disclosure or obtain a protective order. If no protective order or other remedy is obtained, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, and agrees to exercise reasonable efforts to ensure that confidential treatment will be accorded to the Confidential Information so disclosed.
• Each party acknowledges that any violation or threatened violation of this Section 8 may cause irreparable injury to the other party, entitling the other party to seek injunctive relief in addition to all legal remedies.
9. Ownership.
• Opsera Property. As between the parties, Opsera owns and retains all right, title, and interest in and to the Opsera Assets, Usage Data and Feedback. Except for the limited license granted to Customer in Sections 2(a), Opsera does not by means of this Agreement or otherwise transfer any other rights to Customer.
• Customer Property. As between the parties, Customer owns and retains all right, title, and interest in and to the Customer Data. Except for the licenses granted to Opsera in Section 5(a), Customer does not by means of this Agreement or otherwise transfer any other rights to Opsera.
• Feedback. Customer may provide comments, suggestions and recommendations to Opsera with respect to the Opsera Assets (including, without limitation, comments, suggestions and recommendations with respect to modifications, enhancements, improvements and other changes to each of the foregoing) (collectively, "Feedback"). Opsera may freely use and exploit any such Feedback without any obligation to Customer, unless otherwise agreed upon by the parties in writing. Customer assigns to Opsera any proprietary right that Customer may have in or to the Feedback.
10. Representations & Warranties; Disclaimer
• Mutual Representations and Warranties. Each party represents and warrants it has validly entered into this Agreement and has the legal power to do so.
• Customer Representations and Warranties. Customer represents and warrants it: (i) is entitled to transfer, or enable the transfer of, all Customer Data to Opsera; (ii) has all rights necessary to grant Opsera the licenses set forth in this Agreement; and (iii) will not transmit any Prohibited Content to Opsera by means of the Service or as required for Opsera’s provision of Support hereunder.
• Disclaimer. WITH THE EXCEPTION OF THE LIMITED WARRANTIES SET FORTH IN THIS SECTION 10, THE OPSERA ASSETS AND BETA FEATURES ARE PROVIDED "AS IS" TO THE FULLEST EXTENT PERMITTED BY LAW. OPSERA AND ITS LICENSORS EXPRESSLY DISCLAIM ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF PERFORMANCE, MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSES, AND NON-INFRINGEMENT. OPSERA DOES NOT WARRANT THAT THE OPSERA ASSETS OR BETA FEATURES: (I) ARE ERROR-FREE; (II) WILL PERFORM UNINTERRUPTED; OR (III) WILL MEET CUSTOMER'S REQUIREMENTS.
11. Indemnification.
• By Opsera. Opsera will defend Customer, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Customer Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Opsera will indemnify Customer Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Customer Indemnified Parties to such third party, by a court of competent jurisdiction or agreed to in settlement, alleging that the Opsera Assets, including Customer's permitted use thereof, infringes or misappropriates any patent, trademark or copyright of such third party.
If Opsera becomes, or in Opsera’s opinion is likely to become, the subject of an infringement or misappropriation claim, Opsera may, at its option and expense: (i) procure for Customer the right to continue using the Opsera Assets; (ii) replace the Opsera Assets (including any component part) with a non-infringing substitute subject to Customer's prior written approval; or (iii) modify the Opsera Assets so that it becomes non-infringing. If none of the foregoing alternatives are available, Opsera shall notify Customer, and Customer may elect to terminate the license immediately pursuant to Section 7(c).
Opsera will not be obligated to defend or be liable for costs or damages solely to the extent the infringement or misappropriation is attributable to: (a) any unauthorized use, reproduction, or distribution of the Opsera Assets or Opsera’s intellectual property rights by the Customer Indemnified Parties which is the subject of the claim; or (b) any unauthorized combination of, or modification to, the Opsera Assets or Opsera’s intellectual property rights, other than as expressly approved by Opsera that causes the underlying claim where such claim would have not occurred but for such unauthorized act.
THIS SECTION 11(A) STATES OPSERA’S ENTIRE RESPONSIBILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO THIRD-PARTY CLAIMS RELATED TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS UNDER THIS AGREEMENT.
• By Customer. Customer will defend Opsera, and its Affiliates, including each of the foregoing's officers, directors, employees and agents (collectively, "Opsera Indemnified Parties"), from any third-party claim, demand, dispute, suit or proceeding, and Customer will indemnify the Opsera Indemnified Parties from and against any related losses, liabilities, damages, costs or expenses (including, without limitation, attorneys' fees), finally awarded against the Opsera Indemnified Parties related to: (i) Customer or an Authorized User violating a Restriction; (ii) Customer's breach of Section 10(b) (Customer Representations & Warranties); and (iii) any allegation by a governmental body that use of Customer Data, as permitted by Opsera under this Agreement or at Customer's request or direction, has violated any applicable law.
• Indemnification Process. The indemnified parties will: (i) give the indemnifying party prompt written notice of any claim, action or demand for which indemnity is claimed; (ii) give the indemnifying party sole control over the defense and settlement of the claim, provided that the indemnifying party will not settle any claim that involves the payment of money or acknowledgement of wrongdoing on the part of the indemnified parties without indemnified parties' prior written approval such approval not to be unreasonably withheld, conditioned or delayed; and (iii) provide the indemnifying party with reasonable cooperation, at the indemnified parties' expense, in connection with the defense and settlement of the claim.
12. Limitation on Liability.
• NEITHER PARTY, NOR ITS AFFILIATES, NOR THE OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, OR REPRESENTATIVES OF ANY OF THEM, WILL BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, THAT MAY ARISE OUT OF THIS AGREEMENT, EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE POSSIBILITY OR LIKELIHOOD AND WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, SERVICES LIABILITY OR OTHERWISE.
• EXCEPT WITH RESPECT TO EXCLUDED CLAIMS (BUT AS FURTHER LIMITED BELOW) AND UNCAPPED CLAIMS, EACH AS DEFINED BELOW, IN NO EVENT WILL THE COLLECTIVE LIABILITY OF EITHER PARTY, OR THEIR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, AGENTS AND REPRESENTATIVES, TO THE OTHER PARTY FOR ANY AND ALL DAMAGES, INJURIES, AND LOSSES ARISING FROM ANY AND ALL CLAIMS AND CAUSES OF ACTION ARISING OUT OF, BASED ON, RESULTING FROM, OR IN ANY WAY RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER FOR USE OF THE OPSERA ASSETS DURING THE PERIOD TWELVE (12) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE CLAIM.
THE EXISTENCE OF MULTIPLE CLAIMS OR SUITS UNDER OR RELATED TO THIS AGREEMENT WILL NOT ENLARGE OR EXTEND THE LIMITATION OF MONEY DAMAGES WHICH WILL BE THE CLAIMANT'S SOLE AND EXCLUSIVE REMEDY.
• "Excluded Claims" means any claim and/or liability associated with any breach by Opsera of Sections 5(c) (DPA), including for clarity with respect to any claim of liability associated with the DPA. Opsera’s total, cumulative liability for all Excluded Claims will not exceed three (3) times the total amount of fees paid by Customer for use of the Opsera Assets under this Agreement.
• "Uncapped Claims" means any claim or liability associated with: (i) either party's breach of Section 8 (Confidentiality) but not relating to any liability associated with Opsera’s privacy and/or security obligations with respect to Customer Data which remains subject to the Excluded Claims cap; (ii) either party's respective indemnification obligations under Section 11; or (iii) any liability of a party which cannot be limited under applicable law, including gross negligence, recklessness, or intentional misconduct.
13. Insurance. Opsera will maintain in full force and effect during the Term:
• Commercial general liability insurance on an occurrence basis for bodily injury, death, property damage, and personal injury, with coverage limits of not less than $2,000,000 per occurrence and $4,000,000 general aggregate for bodily injury and property damage;
• Worker's compensation insurance as required by applicable law; and
• Technology Errors & Omissions and Cyber-risk on an occurrence or claims-made form, for limits of not less than $4,000,000 annual aggregate covering liabilities for financial loss resulting or arising from acts, errors or omissions in the rendering of the Opsera Assets, or from data damage, destruction, or corruption, including without limitation, unauthorized access, unauthorized use, virus transmission, denial of service, and violation of privacy from network security failures in connection with the Service.
Insurance carriers will be rated A-VII or better by A.M. Best Provider. Opsera’s coverage will be considered primary without right of contribution of Customer's insurance policies. In no event will the foregoing coverage limits affect or limit in any manner Opsera’s contractual liability for indemnification or any other liability of Opsera under this Agreement.
14. Force Majeure. Except for Customer's payment obligations hereunder, neither Opsera nor Customer will be liable by reason of any failure or delay in the performance of its obligations on account of events beyond the reasonable control of a party, which may include denial-of-service attacks, a failure by a third-party hosting provider or utility provider, strikes, shortages, riots, fires, acts of God, war, terrorism, and governmental action (each, a "Force Majeure Event"). For clarification, events caused by a party's own action are not Force Majeure Events. If a Force Majeure Event prevents Opsera from providing the Service for at least thirty (30) consecutive days, either of the parties may immediately terminate this Agreement and any Order Forms, by providing written notice to the other.
15. Miscellaneous. This Agreement is the entire agreement between the parties and supersedes all prior agreements and understandings concerning the subject matter hereof and may not be amended or modified except by a writing signed by both parties. The parties are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, or agency between the parties. Failure to exercise any right under this Agreement will not constitute a waiver. There are no third-party beneficiaries to this Agreement. Any notice provided by one party to the other under this Agreement will be in writing and sent by overnight courier or certified mail (receipt requested) to the address above. If any provision of this Agreement is found unenforceable, this Agreement will be construed as if it had not been included. Neither party may assign this Agreement without the prior, written consent of the other party, except that either party may assign this Agreement without such consent in connection with an acquisition of the assigning party or a sale of all or substantially all of its assets. This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same instrument. To the extent there is an inconsistency between the terms of the Agreement, an Order Form and the DPA, such documents and their terms will be controlled in the following order of precedence: (i) Order Form; (ii) Agreement; and (iii) DPA.
This Agreement is governed by the laws of California without reference to conflicts of law rules. If any dispute, controversy or claim cannot be settled by the parties within 30 days of written notice from either party to the other of such dispute, controversy or claim, then, except as set forth below, any dispute, controversy or claim arising under, out of or relating to this Agreement, will be finally determined by arbitration conducted by the JAMS by a single arbiter who will be fluent in written and spoken English. The place of such arbitration will be in San Francisco, California, U.S.A. The sole and exclusive language of arbitration will be English. The judgment of the arbitration will be final, non-appealable (to the extent not inconsistent with applicable law) and binding upon the parties, and judgment may be entered upon the arbital award in any court of competent jurisdiction. The foregoing does not limit or restrict either party from seeking injunctive or other equitable relief with respect to its intellectual property rights hereunder. Subject to the dispute resolution procedures above, any disputes arising out of or related to this Agreement will be subject to the jurisdiction of the state and federal courts of San Francisco County, California, U.S.A.
