IMPORTANT: PLEASE READ THIS OPSVERSE SOFTWARE AS A SERVICE AGREEMENT (THE “AGREEMENT”) CAREFULLY AND PRINT IT FOR YOUR RECORDS. OPSVERSE IS WILLING TO LICENSE THE APPLICATION AND/OR PROVIDE THE SERVICES TO YOU ONLY UPON THE CONDITION THAT YOU ACCEPT AND AGREE TO ALL THE TERMS CONTAINED IN THIS AGREEMENT THROUGH ONE OF THE METHODS DESCRIBED HEREIN. YOU REPRESENT THAT YOU HAVE READ AND UNDERSTAND ALL OF THE PROVISIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD, INSTALL, ORDER, RECEIVE OR USE THE APPLICATION OR SERVICES. THIS AGREEMENT IS BETWEEN DEVOPSNOW, INC. d/b/a OPSVERSE (“OPSVERSE”) AND THE INDIVIDUAL OR LEGAL ENTITY DOWNLOADING, INSTALLING, ORDERING, RECEIVING OR USING THE OPSVERSE APPLICATION OR SERVICES, OR THAT CLICKS THE BUTTON OR CHECK BOX DISPLAYED AS PART OF THE PROCUREMENT, INSTALLATION, UPGRADE OR UPDATE PROCESS. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY.
1.1 “Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes hereof, means (a) the legal power to direct or cause the direction of the general management and policies of an entity whether directly or indirectly and whether through the ownership of voting securities, by contract, or otherwise, or (b) the beneficial ownership, whether direct or indirect, of fifty percent (50%) or more of the voting securities or other ownership interest or other comparable equity interests of an entity.
1.2 “Application” means the object code version of the OpsVerse software program(s) provided to you through the Service and all Updates provided to you by OpsVerse.
1.3 “Documentation” means the published and generally available instructions for installation, use, and administration set forth at https://docs.opsverse.io , as updated from time to time to reflect Updates.
1.4 “OpsVerse Support Program” means OpsVerse’s Support Program for the Service at https://www.OpsVerse.io/about/support-agreement/ as the same may be updated from time to time by OpsVerse in its discretion; provided, that any updates will not take effect with respect to your subscription to the Service until renewal of the Subscription Term for such Service.
1.5 “Subscription Term” means the period of time during which you are licensed to use the Service in accordance with this Agreement and which period of time commences on the Subscription Start Date.
1.6 “Subscription Start Date” means the date that you first sign up for the Service.
1.7 “Support Services” mean the technical support for the Service made generally commercially available by OpsVerse to its customers pursuant to and as described in the OpsVerse Support Program documentation.
1.8 “Update” means any subsequent release of the Service that OpsVerse makes generally commercially available to its customers pursuant to the Support Program. Updates do not include any Service that is marketed and priced separately by OpsVerse.
1.9 “User” means an individual who is authorized by you or your Affiliates to use the Service, has been given access credentials by you to access and use the Service, and who is bound by enforceable terms at least as protective of the Service and the OpsVerse Confidential Information as this Agreement.
- Free Trial. If you register for a free trial of the Service, OpsVerse will make the Service available to you free of charge (the “Trial Version”) until the end of the free trial period for which you registered or ordered the applicable Service. You may only use the Trial Version to review, demonstrate, and evaluate the Service, and the Trial Version may have limited functionality. You shall not (A) install or use more than one instance of the Trial Version, (B) disclose the results of Application performance benchmarks obtained using the Trial Version to any third party without OpsVerse’s prior written consent, (C) use the Trial Version to update Service that is no longer eligible for Support Services, or (D) use the Trial Version for any purpose other than the sole purpose of determining whether to purchase a license to the Service. NOTWITHSTANDING SECTION 8 (LIMITED WARRANTY AND DISCLAIMER), DURING A FREE TRIAL, THE TRIAL VERSION AND ANY APPLICABLE SERVICES ARE PROVIDED “AS-IS” WITHOUT WARRANTY. After your free trial period has expired, your subscription will automatically be upgraded to a standard, full-functioning version of the Service. You agree that your subscription will continue thereafter, and you will pay on a month to month basis for the Service, until you terminate the Service in accordance with this Agreement. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
- License Grant.
3.1 License Grant. Subject to all terms and conditions set forth in this Agreement, OpsVerse grants you a limited, worldwide, nonexclusive, royalty-free license (without right of sublicense) during the Subscription Term to use the Service, and to permit your Users to use the Service, for your own business purposes, in accordance with the Documentation and subject to the license limitations and entitlements set forth in this Agreement. You are responsible for the compliance of your Users with the terms and conditions of this Agreement, including their compliance with the Documentation and for any breach of this Agreement by your Users. At OpsVerse’s written request, and not more than once every twelve (12) months (or more frequently if a previous violation has taken place, but only to confirm the violation has been corrected, and not to exceed more than once per calendar quarter), you will certify to OpsVerse that you and your Users are in compliance with this Agreement and the Documentation.
3.2 Restrictions; Export Laws.
3.2.1 Restrictions. You shall not and shall not permit any third party to: (a) use the Service other than in accordance with the Documentation, (b) use the Service in violation of the license restrictions applicable to the Service, (c) copy the Service, (d) modify, adapt, transfer, distribute, make publicly available, resell, rent, lease, sublicense or loan the Service or create or prepare derivative works based upon the Service or any part thereof, (e) use the Service in a service bureau or application service provider environment, in a commercial timeshare arrangement, or for purposes of providing services to a third party, (f) combine all or any part of the Service with other software or use all or any part of the Service to create a new product, application or service; (g) develop, resell, distribute or make available any service, software or device incorporating all or any part of the Service, (h) use the Service except on your own internal computer networks on devices that you own, lease or otherwise control (including for such purpose the hardware of a third party hosting providers that hosts the Service for your benefit, such as Amazon Web Services), (i) use the Service in contravention of, or to violate, any applicable laws, rules, regulations or guidelines, (j) remove or alter any trademark, trade names, product names, logo, copyright or other proprietary notices, legends, symbols or labels from the Service, or (k) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code of the Service or attempt to modify, alter, or circumvent the license control and protection mechanisms within the Service. If 3.4(k) is prohibited by applicable law, you shall provide OpsVerse with a detailed prior written notice of any such intention to reverse engineer the Service and shall provide OpsVerse with a right of first refusal to perform such work at rates equal to those proposed by a recognized third-party software services provider for such work.
3.2.2 Export. You may not export the Service into any country prohibited by the United States Export Administration Act and the regulations thereunder. You acknowledge that the release of software, technology, or data to a non-US person within the United States or elsewhere abroad is deemed to be an export to the non-U.S. person’s home country or countries. You acknowledge that the export of any Service is subject to export controls and you agree that the Service, and the direct or indirect product thereof, will not be exported (or re-exported from a country of installation), directly or indirectly, unless you obtain all necessary licenses from the U.S. Department of Commerce or other applicable agency or governmental body as required under applicable law or you qualify for exemptions or exceptions. You shall comply with the export laws and regulations of the United States and other applicable jurisdictions in using the Service, including without limitation the International Traffic in Arms Regulations (ITAR), 22 CFR 120 – 130, the Export Administration Regulations (EAR), 15 CFR 730 – 799, and the Foreign Assets Control Regulations (FACR), 31 CFR 500 – 599. Without limiting the foregoing, (i) you represent that neither you nor your Users are not named on any U.S. government list of persons or entities prohibited from receiving exports, and (ii) you shall not use, and shall not permit your Users to access or use, the Service in violation of any U.S. export embargo, prohibition or restriction. You acknowledge and agree that the Service is prohibited for export or re-export to any person or entity on the U.S. Department of Commerce Denied Persons List, Entity List, or Unverified List, U.S. State Department’s Nonproliferation Sanctions List, or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists, as such is changed from time to time.
3.3 Open Source Software. You acknowledge that certain third party software incorporated in the Service requires that OpsVerse provide copyright notices and/or additional terms and conditions to you, which copyright notices and additional terms and conditions may be accessed by you at https://www.OpsVerse.io/about/opensourcelicenses/ and are incorporated by reference into this Agreement.
- Support Services. During a Subscription Term, for the fee, OpsVerse will provide you (through your designated representatives) with Support Services, including Updates, in accordance with and subject to the terms of the Support Program. OpsVerse may use technical information provided by you relating to the Service as part of the Support Services, including for product support and development. As part of the Support Services, OpsVerse may make available bug lists, planned feature lists, and other supplemental materials, all of which are Confidential Information of OpsVerse and for which OpsVerse makes no representations or warranties of any kind.
- Fees and Payments. You agree that OpsVerse may charge your credit card on file based on your usage of the Services and the Applications you have chosen to use in accordance with the OpsVerse pricing structure. All fees, charges, and other amounts are payable in United States dollars and, except as expressly otherwise provided herein, are nonrefundable. You shall be responsible for taxes levied on any transaction under this Agreement, including all federal, state, and local taxes, levies, and assessments, excluding any taxes based on OpsVerse’s net income, employees, or property.
6.1 Confidential Information. During the term of this Agreement, each party will regard any information provided to it by the other party and designated in writing as proprietary or confidential to be confidential (“Confidential Information”). Confidential Information shall also include information which, to a reasonable person familiar with the disclosing party’s business and the industry in which it operates, is of a confidential or proprietary nature. A party will not disclose the other party’s Confidential Information to any third party without the prior written consent of the other party, nor make use of any of the other party’s Confidential Information except in its performance under this Agreement. Each party accepts responsibility for the actions of its agents or employees and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event shall less than reasonable care be used. For the avoidance of doubt, the parties expressly agree that the Service, the fees payable under the terms of this Agreement are the Confidential Information of OpsVerse. A receiving party shall promptly notify the disclosing party upon becoming aware of a breach or threatened breach hereunder, and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
6.2 Exclusions. Information will not be deemed Confidential Information hereunder if such information: (i) is known prior to receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information or breach of this Agreement. The receiving party may disclose Confidential Information pursuant to the requirements of applicable law (including without limitation applicable state or federal regulations which may require you to make disclosure pursuant to and as limited by such regulations, such as freedom of information regulations), legal process or government regulation, provided that it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
6.3 Specific Performance. If the receiving party discloses or uses (or threatens to disclose or use) any Confidential Information in breach of this Section 6, the disclosing party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies are inadequate.
- Ownership; Feedback.
7.1 OpsVerse Service. OpsVerse and its licensors retain ownership of all right, title, and interest in and to the Service and the software that powers the Service, including all intellectual property rights therein and thereto, and OpsVerse reserves all rights not specifically granted in this Agreement. If the Service was acquired outside the United States, then you agree and assent to the adherence to all applicable international treaties regarding intellectual property rights which shall also apply. You shall take all reasonable precautions to prevent unauthorized or improper use or disclosure of the Service. OpsVerse and other trademarks contained in the Service are trademarks or registered trademarks of OpsVerse in the United States and/or other countries.
7.2 Feedback. You and your Users may, from time to time, voluntarily make known to OpsVerse suggestions, enhancement requests, techniques, know-how, comments, feedback, or other input to OpsVerse with respect to the Service (collectively, “Suggestions”). Unless otherwise agreed to in writing by the parties with respect to any Suggestion, OpsVerse shall have a royalty-free, worldwide, irrevocable, perpetual license to use, disclose, reproduce, license, distribute, and exploit any Suggestion without restriction or obligation of any kind, on account of confidential information, intellectual property rights, or otherwise, and may incorporate into its services any service, product, technology, enhancement, documentation, or other development (“Improvement”) incorporating or derived from any Suggestion with no obligation to license or to make available the Improvement to you or any other person or entity.
- Limited Warranty.
8.1 Service Warranty. Except with respect to the Trial Version of the Service for which OpsVerse provides no representations, warranties, or covenants, OpsVerse represents, warrants and covenants that (a) the Service will perform in conformity with its Documentation; (b) any Support Services will be provided in a professional manner, with reasonable skill and care and in conformance with generally accepted software industry standards; and (c) as of the Subscription Start Date, the Service has been scanned using the most recent version of a leading commercially available virus scanning program designed to detect and remediate known viruses and other harmful and malicious code. Your exclusive remedy for OpsVerse’s breach of the foregoing warranties is that OpsVerse will, at its option and at no cost to you, either (a) provide remedial services necessary to enable the Service or Support Services to conform to the warranty, or (b) replace any defective Service. If neither of the foregoing options is commercially feasible within a reasonable period of time, upon your return of the affected Service to OpsVerse, OpsVerse will refund all prepaid fees for the unused remainder of the applicable Subscription Term following the date of termination for the affected Service and this Agreement for the affected Service will immediately terminate without further action of the parties. You agree to provide OpsVerse with a reasonable opportunity to remedy any breach and reasonable assistance in remedying any nonconformities.
8.2 DISCLAIMER. EXCEPT AS SET FORTH IN THE FOREGOING LIMITED WARRANTY IN SECTION 8.1, THE SERVICE IS PROVIDED “AS IS” AND OPSVERSE AND ITS LICENSORS DISCLAIM ALL OTHER WARRANTIES AND REPRESENTATIONS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. OPSVERSE DOES NOT REPRESENT OR WARRANT THAT THE SERVICE IS ERROR FREE OR THAT ALL ERRORS CAN BE CORRECTED. OPSVERSE SPECIFICALLY DISCLAIMS ANY EXPRESS OR IMPLIED WARRANTY OF FITNESS FOR SUCH PURPOSES. No oral or written information or advice given by OpsVerse, its resellers, dealers, distributors, agents, representatives or employees shall create any warranty or in any way enhance any warranty provided herein.
8.3 Limitation. If applicable law requires any warranties other than the foregoing, all such warranties are limited in duration to ninety (90) days from the date of delivery. Some jurisdictions do not allow the exclusion of implied warranties, so the above exclusion may not apply to you. The warranty provided herein gives you specific legal rights and you may also have other legal rights that vary from jurisdiction to jurisdiction. The limitations or exclusions of warranties, remedies or liability contained in this Agreement shall apply to you only to the extent such limitations or exclusions are permitted under the laws of the jurisdiction where you are located.
9.1 By OpsVerse. OpsVerse agrees to defend (at OpsVerse’s expense) you and your Affiliates and your respective officers, directors, and employees from and against any and all claims, demands, suits, and proceedings asserted by a third party (“Third Party Claims”) against any or all of them which Third Party Claims allege that the Service or your use thereof infringes the intellectual property rights of a third party and OpsVerse shall indemnify and hold you and your indemnitees harmless from all damages finally awarded by a court of competent jurisdiction or in a binding arbitration or agreed to by OpsVerse in settlement with respect to such Third Party Claims. Notwithstanding the foregoing, OpsVerse shall have no obligation with respect to Third Party Claims or demands arising from (i) an allegation that does not state with specificity that the Service is the basis of the Third Party Claims; (ii) the use or combination of the Service or any part thereof with software, hardware, or other materials not developed by OpsVerse if the Service or use thereof would not infringe without such combination; (iii) modification of the Service by a party other than OpsVerse or its authorized contractors, if the use of unmodified Service would not constitute infringement; (iv) your use of the Service in violation of this Agreement or the Documentation if the infringement would not have arisen but for such violation; (v) your failure to install an Update that would have avoided the infringement provided that OpsVerse made the Update available to you for free and with notice that it was provided to avoid an infringement; (vi) an allegation of infringement or misappropriation deriving from open source software; or (vii) an allegation made against you prior to the execution of this Agreement. Further, if OpsVerse has a reasonable belief that the Service is infringing, OpsVerse will, at OpsVerse’s sole cost and expense, either (a) obtain for you a license to continue using the Service, or (b) modify the Service so that it is no longer infringing without any material loss of functionality; provided that if neither option is commercially feasible within a reasonable period of time, either party may elect to terminate this Agreement upon written notice to the other party and OpsVerse will refund all prepaid fees for the unused remainder of the Subscription Term following the termination date with respect to the Service that is the subject of the Third Party Claim. This Section 9.1 states OpsVerse’s sole liability and your exclusive remedy for claims of infringement or misappropriation of third-party intellectual property rights.
9.2 Your Indemnity. You agree to defend (at your expense) OpsVerse and its officers, directors, and employees from and against any and all Third Party Claims asserted against any or all of them which Third Party Claims arise out of or relate to your use of the Service in violation of this Agreement and your provision of any data hereunder, and you shall indemnify and hold OpsVerse and its indemnitees harmless from all damages finally awarded by a court of competent jurisdiction or in a binding arbitration or agreed to by you in settlement with respect to such Third Party Claims.
9.3 Process. Each party’s obligations under this Section 9 are conditioned on the indemnified party (i) providing the indemnifying party with written notice promptly upon learning of any claim for which it seeks indemnification; provided that any failure to provide prompt notice shall not relieve the indemnifying party of its obligations except to the extent the indemnifying party was prejudiced by such failure; (ii) providing the indemnifying party sole control over the defense and settlement of the claim; provided that the indemnifying party may not settle the claim in a manner adverse to the indemnified party or which would impose liability on the indemnified party without the indemnified party’s prior written consent (which will not be unreasonably withheld or delayed); and provided, further, that the indemnified party may participate in the defense of the claim at its own cost and expense; and (iii) providing the indemnifying party with assistance in the defense and settlement of the claim at the indemnifying party’s expense.
- LIMITATION OF LIABILITY
10.1 Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, COVER, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, LOSS OF PROFITS, LOSS OF GOODWILL, LOSS OF USE, LOSS OR CORRUPTION OF DATA, INABILITY TO ACCESS OR USE EQUIPMENT, SERVICE OR DATA, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, BUSINESS INTERRUPTION OR THE LIKE), ARISING OUT OF THIS AGREEMENT OR THE USE OF, OR INABILITY TO USE, THE SERVICE, OR BASED ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, EVEN IF SUCH PARTY OR ITS REPRESENTATIVES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH PARTY’S TOTAL AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR ANY CAUSE WHATSOEVER WILL NOT EXCEED THE AMOUNT PAID TO OPSVERSE FOR THE SERVICE THAT CAUSED SUCH DAMAGE IN THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
10.2 Exclusions. The foregoing limitations in Section 10.1 shall not apply to (i) gross negligence, willful misconduct, or fraud, (ii) breach of the obligations of confidentiality set forth in Section 6, (iii) violation or misappropriation by a party of the other party’s intellectual property rights, or (iv) you or your Users’ or third party hosting providers’ breach of Section 3.1 (License Grant), or Section 3.4 (Restrictions; Export Laws). Further, the foregoing limitations shall not apply to a party’s indemnification obligations in Section 9 for which a party’s total aggregate liability shall be limited to (x) two times (2x) the fees paid to OpsVerse for the Service that is the subject of the Third Party Claim in the twelve months immediately preceding the date the claim arose or (y) $100,000, whichever is lesser. Further, nothing Section 10.1 shall limit your obligation to pay the applicable fee(s) for all authorized and unauthorized use of the Service.
10.3 Basis of the Bargain. The Disclaimer set forth in Section 8.2 and the Limitation of Liability set forth in this Section 10 are fundamental elements of the basis of the agreement between OpsVerse and you. OpsVerse and its suppliers would not be able to provide the Service on an economic basis without such limitations.
- Term and Termination.
11.1 Term. This Agreement shall remain in full force and effect until all Services have terminated or expired or until earlier terminated in accordance herewith. Unless either party provides the other party with written notice of termination prior to the end of the then current Subscription Term, the Subscription Term will be extended for additional thirty day periods until terminated in accordance with this Agreement.
11.2 Termination. This Agreement may be terminated (a) by you immediately upon notice (minimum charges shall apply)by either party if the other party becomes insolvent, resolves to file bankruptcy, is adjudicated as bankrupt, or if a petition in bankruptcy is filed against the other party and such petition is not discharged within thirty (30) days of such filing, or (b) by either party if the other party materially breaches this Agreement and fails to cure such breach to such party’s reasonable satisfaction within ten (10) days following receipt of written notice thereof.
11.3 Effect of Termination. Upon any termination of this Agreement, You and your Users shall immediately cease all use of the Service and certify in writing to OpsVerse within thirty (30) days after termination that such Service and all copies thereof have been destroyed, purged, or returned to OpsVerse. Termination of this Agreement or a license granted hereunder shall not limit either party from pursuing any remedies available to it, including injunctive relief, or relieve you of your obligation to pay all fees that have accrued or have become payable hereunder, without right of refund. Sections 1, 5, 6, 7, 8.2, 9, 10, 11.3 and 12 shall survive any expiration or termination of this Agreement.
12.1 Governing Law; Jurisdiction. This Agreement shall be governed by the internal laws of the Commonwealth of Massachusetts, U.S.A., without giving effect to principles of conflict of laws. Each party hereby irrevocably consents to the exclusive jurisdiction and venue of the state courts sitting in the Commonwealth of Massachusetts or the federal courts in the Commonwealth of Massachusetts to resolve any disputes arising under this Agreement. In each case this Agreement shall be construed and enforced without regard to the United Nations Convention on the International Sale of Goods and without regard to the Uniform Computer Information Transactions Act. To the fullest extent permitted, each party waives the right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the transactions contemplated hereby.
12.2 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety, without consent of the other party, to its Affiliate or to its successor in a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets, stock, or business to which this Agreement relates. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.3 Entire Agreement. This Agreement contains the complete agreement between the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous agreements and understandings, whether oral or written. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Service licensed hereunder shall be of no effect and all such terms or conditions shall be null and void. You acknowledge and agree that your agreement hereunder is not contingent upon the delivery of any future functionality or features not specified herein or dependent upon any oral or written, public or private comments made by OpsVerse with respect to future functionality or features for the Service. In the event of any conflict between this Agreement, or any document linked to herein or therein, this Agreement shall govern.
12.4 Waiver. The failure or delay of a party to exercise any of its rights under this Agreement or upon any breach of this Agreement shall not be deemed a waiver of those rights or of the breach. No Reseller or OpsVerse dealer or agent is authorized to make any amendment to this Agreement. The parties may amend this Agreement by mutual written agreement executed by duly authorized representatives of the parties. The parties agree that there are no third party beneficiaries to this Agreement. Neither party shall be deemed to be an employee, agent, or other legal representative of the other party for any purpose whatsoever, or have the right or authority to assume or otherwise create any obligation or responsibility, express or implied, on behalf of the other party or to bind the other party in any manner whatsoever.
12.5 Severability. If any provision of this Agreement shall be held by a court of competent jurisdiction to be contrary to law that provision will be enforced to the maximum extent permissible and the remaining provisions of this Agreement will remain in full force and effect. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof.
12.6 Notices. Notices must be in English, in writing, and will be deemed given upon receipt, after being sent using a method that provides for positive confirmation of delivery to the physical address or email address provided to us upon sign up, including without limitation through automated receipt or by electronic log.
12.7 U.S. Government Users. The Service and its Documentation are “Commercial items,” “Commercial computer software” and “Computer software documentation” as defined by the Federal Acquisition Regulations (“FAR”) and Defense Federal Acquisition Regulations Supplement (“DFARS”). Pursuant to FAR 12.211, FAR 12.212, DFARS, 227.7202-1 through 227.7202-4, and their successors, the U.S. Government acquires the Service and its documentation subject to the terms of this Agreement.
12.8 Counterparts; Electronic Signatures; Construction. A manually or electronically signed copy of this Agreement shall be deemed to have the same legal effect as delivery of an original signed copy of the Agreement. The titles of the sections of this Agreement are for convenience of reference only and are not to be considered in construing this Agreement. Unless the context of this Agreement clearly requires otherwise: (i) references to the plural include the singular, the singular the plural, and the part the whole, (ii) “or” has the inclusive meaning frequently identified with the phrase “and/or,” (iii) ”including” has the inclusive meaning frequently identified with the phrase “including but not limited to” or “including without limitation,” and (iv) references to “hereunder,” “herein” or “hereof” relate to this Agreement as a whole. Any reference in this Agreement to any statute, rule, regulation or agreement, including this Agreement, shall be deemed to include such statute, rule, regulation or agreement as it may be modified, varied, amended or supplemented from time to time. The parties agree that this Agreement shall be fairly interpreted in accordance with its terms without any strict construction in favor of or against either party and that ambiguities shall not be interpreted against the drafting party